Volume 9 — Sadler's Pennsylvania Reports

October Term, 1887, No. 199, W. D., before Gordon, Cb. T., Paxson, Sterrett, and Witxtams, JJ. Error to Common Pleas No. 2 of Allegheny County to review a judgment in favor of the plaintiff on a scire facias on a municipal claim. The facts are fully stated in the charge of the court below, White, J., which was substantially as follows: The claim of the plaintiff in this case is for the expensé of a sidewalk placed in front of the defendant’s lot on Erankstown avenue.

<p>October Term, 1887, No. 101, W. D., before Gordon, Oh. •J., Paxson, Sterrett, Green, and Williams, JJ. Error to the Oommon Pleas No. 2 of Allegheny County to review a judgment for plaintiffs in an action of assumpsit.</p> <p>On the trial before White, J., the following facts appeared: Defendant, Christ Detzel, failed in September, 1876, owing plaintiffs a balance of $538.75 on hook accounts. Suit was brought on this account on May 7, 1886, and the defendant pleaded the statute of limitations.</p> <p>Plaintiffs proved by Langenheim, a member of plaintiff firm, that they had not pressed the claim, on account of defendant’s misfortune in business, hut that he had frequently'presented to the defendant a statement of the balance due, and that the latter had always promised to pay; that he had frequent interviews with defendant on the subject — one during tbe year 1877, and subsequently during the years of 1880, 1882, and 1883, the last being on December 5, when he did not dispute the balance due, and said: “I will pay you part next summer.”</p> <p>Defendant admitted having interviews with Langenheim, hut denied that he had ever made an absolute promise to pay; that in one interview, after six years had elapsed, he said that.if he were “able to pay, he would try to pay.”</p> <p>Defendant requested the court to charge:</p> <p>1. That taking all the evidence in this case into consideration, the plaintiffs cannot recover.</p> <p>Ans. Refused.</p> <p>Plaintiff requested the court to charge:'</p> <p>1. That there need not be an express promise to pay in order to take the debt out of the statute of limitations, but that a clear, distinct, and unequivocal acknowledgment of the debt consistent with a promise to pay will suffice for the law to imply such a promise, even though not actually or expressly made.</p> <p>Ans. Affirmed.</p> <p>That if the jury find from the evidence that the defendant, within six years after the debt became due, acknowledged or admitted the same, and within six years after the first acknowledgment again acknowledged and admitted the debt, and that the several acknowledgments occurred within six years of each other, and the last acknowledgment within six years before the bringing of the suit in this case, then the debt sued on was never barred, and the verdict must be for the plaintiffs for the full amount of the debt with interest to date, if there was no uncertainty about the debt and the amount, and the acknowledgment and admission were clear, distinct, and unequivocal and consistent with an intention or promise to pay it.</p> <p>Ans. Affirmed.</p> <p>The court left to the jury to say upon the evidence whether the defendant promised to pay the specific debt and whether such promise had been made within six years of bringing suit.</p> <p>Verdict for plaintiffs, for $875.46, and judgment thereon.</p> <p>Defendant took this writ, assigning for error the answers to the points, and the charge.</p> <p>A mere admission of a debt, without anything indicating its amount or nature or a promise to pay without reference to the sum paid is insufficient to toll the statute of limitations. Wolfensberger v. Young, 47 Pa. 516Morgan v. Walton, 4 Pa. 321; Huff v. Richardson, 19 Pa. 388; Emerson v. Miller, 27 Pa. 278; Palmer v. Gillespie, 95 Pa. 340, 40 Am. Rep.' 657.</p> <p>A promise to pay when able will not toll the statute without proof of ability to pay. Laforge v. Jayne, 9 Pa. 412.</p> <p>The case was fairly left to the jury, who found an express promise to pay.</p>

October Term, 1887, No. 159, W. D., before Gordon, Oh. J., Paxson, Sterrett, Green, and Williams, JJ. Error to the Common Pleas No. 2 of Allegheny County to review a judgment in favor of the plaintiff in an action of ejectment.

October Term, 1887, No. 214, W. D., before Gordon, Ob. J., Paxson, Sterrett, and Williams, JX Appeal from decree of Common Picas No-. 1 of Allegheny County making perpetual an injunction, restraining appellant city from inlorfering with or preventing appellee company from laying and operating pipes for supplying natural gas.

<p>A person, about erecting a building in a thickly settled neighborhood, may be enjoined from using such building for the purpose of boiling bones and the carcasses of horses and other animals; but should not be enjoined from erecting the building.</p> <p>Cited in Evans v. Reading Chemical Fertilizing Co. 160 Pa. 227, 28 Atl. 702.</p> <p>Note. — Injunctions will be granted to restrain nuisances when the facts are clear, and the injury threatened cannot be compensated in damages. Haugh’s Appeal, 102 Pa. 42, 48 Am. Rep. 193; Pennsylvania Lead Co’s Appeal, 96 Pa. 116, 42 Am. Rep. 534. So if the nuisance is one per se. Smith v. Cummings, 2 Pars. Sel. Eq. Cas. 92. But the injunction will not be granted where the facts are doubtful until the right has been established at law. Wood v. McGrath, 150 Pa. 451, 16 L. R. A. 715, 24 Atl. 682; Mirkil v. Morgan, 134 Pa. 144, 19 Atl. 628; Mowday v. Moore, 133 Pa. 598, 19 Atl. 626. Nor will the court restrain where the injury is not irreparable, and the complainant can be compensated in damages. Rhodes v. Dunbar, 57 Pa. 274, 98 Am. Dec. 221; Reading Iron Works v. South Chester, 3 Lane. L. Rev. 107, 4 Del. Co. Rep. 455. Nor in case no damages could be recovered. Rhodes v. Dunbar, 57 Pa. 274, 98 Am. Dec. 221; Shell v. Kemmerer, 13 Phila. 502; Sparhawk v. Union Pass. R. Co. 54 Pa. 401.</p>

<p>October Term, 1887, No. 222, W. D., before Gordon, Oh. J., Paxson, Steeeett, and Williams, JJ. Certiorari to the Court of Common Pleas No. 2 of Allegheny County to review a decree fixing the amount of loss and damage to be paid by the Allegheny County Light Company, defendant, to the Brush Electric Company and John E. Eidall, plaintiffs, in a suit in equity.</p> <p>The bill alleged, inter alidj that the plaintiffs, the Brush Electric Company (which was a corporation of the state of Ohio, engaged in making and selling electric light apparatus under patents controlled by it) and Eidall & Ingold, its exclusive sales agents in Pittsburgh and Allegheny, had granted to the defendant, the Allegheny County Light Company, the exclusive right of leasing or furnishing for use to others lights and electric lamps of the Brush apparatus, with all accessories appertaining thereto, and to connect such lamps with and operate them by electric generating apparatus furnished by the Brush company and its said agents, the same to be sold to defendant at regular card rates.</p> <p>That thereafter and on March 31, 1883, the parties entered into the following contract, supplementary to the original con-contract between them:</p> <p>“And whereas, Said Allegheny County Light Company has been using said Brush apparatus, purchasing the same together with supplies from said Eidall & Ingold, and it is desired that said light company shall continue said use,</p> <p>“Therefore, It is now agreed by and between the parties that on all future purchases of said Brush apparatus or supplies made by said light company from said Kidall & Ingold, or their assignees, there shall be allowed to said light company a discount of 10 per cent from the list price, or such higher rate of discount as may be from time to time allowed to light companies purchasing from agents of said Brush Electric Company. This discount shall be allowed on apparatus and supplies, and shall not include storage batteries or incandescent lamps.</p> <p>“In consideration thereof, it is agreed on the part of the Allegheny County Light Company, that said company shall not purchase, rent, sell, or use, any other electric arc light apparatus or carbons, except those provided by said Brush Electric Company.</p> <p>“In witness hereof, the said Kidall & Ingold have hereto set their hands and seals, and the president of said light company has hereto set his hand and affixed the seal of said company, the day and year aforesaid.”</p> <p>That the discount of 10 per cent named in said contract of March 31, 1883, was, as well known to the defendant, to come off from the commissions said agents, Kidall & Ingold, were entitled to receive from the said Brush Electric Company, and an important and the chief consideration, to the said agents and their said principal, was the special agreement of said defendant not to purchase, rent, sell, or use any otMr electric arc light, apparatus, or carbons, excepting those provided by the said Brush Electric Company, especially as the carbons therein mentioned were, in the use of the electric light, the great article of consumption and of consequent steady, continuous, and large supply.</p> <p>That after the execution of said contract of March 31, 1883, the said Ingold, of said film of Kidall & Ingold, assigned his interest in said firm, including his interests in said contracts, to his said partner John E. Kidall, a plaintiff herein.</p> <p>That each of the said parties, interested in said contracts, continued their business together, in relation to the subject-matter thereof in full and faithful observance and compliance with all the obligations and terms of said agreements, until some time in the summer or fall of the year 1884, when the defendant entered upon, and has ever since continued, and declares its purpose of continuing in, a course of direct violation and disregard of the terms of said agreements in this, “that since that time it has purchased all its carbons used for and in its business, comprising large amounts and frequent purchases, from others, and wholly of those made and provided and sold by others, than the-said Brush Electric Company or its said agent or agents; such others being competitors of said Brush Electric Company, in that part of its business, from whom said agreements were expressly designed and intended to protect it; and this defendant has so done, declaring and still declares that it intended and intends to purchase and use, and to continue purchasing and using such carbons from others than your said orators, notwithstanding the express terms, as aforesaid, of its agreement and obligation contained in said contract of March 31, 1883. And the said defendant has been and is engaged in constructing and making apparatus, machinery, or accessories, or parts thereof, covered by said contract of 1881, as above set forth, excluding' the defendant from such right, and it is particularly engaged in making commutators, which is a definite part of said machinery and apparatus, to the especial injury of said Brush Electric Company in its business, which is an important part thereof, of making and manufacturing all apparatus, machinery, accessories, and supplies (including carbons, etc.), in this bill and said contracts referred to.”</p> <p>The prayer of the bill asked: (1) That the contract referred to be declared binding upon the parties; (2) that the defendant specifically perform said contracts; (3) that defendant be enjoined from continuing to construct or malee commutators, apparatus, machinery, or accessories, or any parts thereof which are furnished by the Brush company; (4) that defendant be enjoined from purchasing or using any other electric arc light, apparatus, or carbons, except those provided by the Brush company; (5) that defendant make discovery of all carbons, arc lights, or apparatus bought from others than the plaintiffs, and of all commutators, apparatus, machinery,- or accessories, made by it or by others than the Brush company; (6) that an account be had, showing the profits or commissions of which plaintiffs have been deprived, and of the damages and losses they have sustained by the conduct of defendant, and that the same be paid to plaintiffs as their respective interests appear; and (7) general relief.</p> <p>The defendant answered, denying the equities of the bill.</p> <p>After evidence had been given before a master the bill was dismissed, but on appeal to the supreme court the decree of dismissal was reversed and the court below directed to proceed to a final decree. (See 114 Pa. 574, 7 Atl. 794.)</p> <p>Thereupon, on March 5, 1887, a decree was entered directing the defendant to “observe and comply with and specifically perform all of the terms of the contracts recited and referred to in the plaintiff’s bill filed in this suit, and by the said defendant, to be thereby observed, complied with and performed,” and enjoining the defendant “from purchasing or using any other carbons excepting those provided by the said Brush Electric-Company, and from otherwise violating tire terms of said agreement.”</p> <p>The case was referred back to the master, Thomas Harriott,. Esq., to state an account between the parties, who reported substantially as follows:</p> <p>The only question now before the master is the damage suffered by the plaintiffs under the contract of March 31, 1883, on account of defendant refusing to buy “carbons” from the plaintiffs as therein provided. After the execution of this contract the defendant bought from • other parties than the plaintiffs 458,359 carbons; of these 153,500 were one half inch carbons; and the balance, 294,859, -were seven sixteenths inch carbons. These’ purchases continued from December, 1884, to March,. 1887.</p> <p>The agreement of March, 1883, provides that the defendant shall buy all its carbons from the Brush company at the list price of this company, less a discount of 10 per cent or such higher rate of discount as may be given to other light companies buying from the agents of the Brush company.</p> <p>The master is not able to find from the testimony just wha.t the market price of carbons was. It is true that we have in evidence the price paid by the defendant for all the carbons bought from others than the Brush company; but there is no evidence to show that they were equal in quality to the Brush carbons, and the master does not think that the price' paid by the defendant was the market price. Mr. Duncan, the general manager, testifies that while the various manufacturers had a price list, that was nearly uniform, yet the salesmen did not regard this; and while the dealers all sent out price lists, he never found an agent that stuck to the price list. The testimony also shows that the defendant bought carbons as low as $8 per 1,000, while the cheapest carbon made by tire Brush company cost $9.40 per 1,000 to make it, and a very large proportion of the carbons from others than the Brush company were bought at a price much less than cost price for the manufacture of the Brush carbons. The master, therefore, cannot find that the prices in evidence of the purchases made as above are the market prices, and holds that the list prices of the Brush company are to govern in assessing the damages in this case.</p> <p>Notwithstanding the master is of the opinion that the price list of the Brush company shall govern in assessing the damages in this case, yet it is very difficult to arrive at the damage done. From December 1, 1884, to May 10, 1886, the list price of the Brush company for carbons was $34.38 for %-inch, and $27.50 for 7/16-inch carbons; and since May 10, 1886, the list price has been $23.75 for %-inch, and $21.25 for seven-sixteenths carbons. The cost of making these carbons was, from December 1, 1884, to June 1, 1885, $12.75 for seven-sixteenths inch per 1,000; and from June 1, 1885, to January 1, 1886, for same size, $10.85 per 1,000; and from January 1, 1886, to present time, for same size, $9.40 per 1,000. The ^-inah. carbons cost to make $2 per 1,000 more than the prices above during the period specified.</p> <p>If this were the only element the computation of the damage would be easy; it seems, however, that in making carbons there are from 10 to 20 per cent of the lumber put into the oven that come out slightly imperfect but still fit for use; these imperfect-carbons are called “seconds.” Up to the first of July, 1885, the Brush company did not sell these “seconds,” but ground them up and worked the material over again. These “seconds” are in. every way made the same and of the same material as the “firsts,” or perfect carbons, the only difference in the two being that a short piece at the end of the “seconds” may be burned too hard or may not be quite straight. After July 1, 1885, the Brush company commenced to sell these “seconds” at a price slightly above the cost of making the “firsts,” but never made a list price for “seconds.” It continued to sell these “seconds,” at from $11 to $14 per 1,000, until a short time after the interlocutory decree of March 5, 1887.</p> <p>From December, 1884, until the Brush company stopped selling “seconds,” after the said decree, the only carbons bought by the defendant from the Brush company were “seconds.” Seventeen thousand were thus bought during July and August, 1885, and the evidence does not show the number bought after the •decree of March 5, 1887, before the Brush company stopped selling “seconds.” The plaintiffs claim that the question of “seconds” should not enter into this case, as they were not sold •or considered in March, 1883, when the agreement was signed ■and there was no list price for “seconds,” while the defendant ■claims that it would have bought nothing but “seconds” during the period for which an account is ordered, and that the damage should be based on the profit on “seconds.”</p> <p>The testimony shows that the “seconds” bought by the defendant from the plaintiffs answered the purpose as well as “firsts,” except that they required a little more care in setting. The master thinks, therefore, that if the plaintiffs could have supplied the defendant with all the carbons it needed of the grado of “seconds,” the defendant had a right to order these after July 1, 18S5. The testimony is not full on this point; the plaintiffs show that “seconds” are an accidental product, varying from 10 to 20 per cent of the carbons put into the kiln, and that the demand for them, during the time they were sold was such that they could not accumulate any stock; they do not show, however, that at any time they were unable to fill any order for “seconds.” The master thinks that if he is right in ruling that the defendant can order “seconds,” the plaintiffs were bound to furnish this grade, then it is fair, under the evidence, to presume that the •supply would be sufficient, unless the plaintiffs show that it would not.</p> <p>■ The master, therefore, thinks that damages should be assessed to July 1, 1885, according to the list price of the Brush company for “firsts,” and since that time according to the profits on “seconds.” Just what the profits are on “seconds” is not clear; the plaintiffs’ witness claims the difference between the value of “seconds,” at the price for which they are sold, and their value as material to grind over, but does not give the data from which this could be accurately ascertained; the •defendant claims that the profit, on “seconds” is the difference between the cost of “firsts” and the selling price of “seconds,” •claiming that it costs just the same to make “seconds” as “firsts.” This is the correct view of the cost price as given by plaintiff, based on both “firsts” and “seconds.” As the cost of making carbons decreased $1.90 per 1,000 at about the time the company commenced selling “seconds,” the master concludes that this decrease was probably due to the increased value of “seconds” as a marketable product over their value as material. The selling price of “seconds” varied from $11 to $14 per 1,000; but as the plaintiffs have not furnished exact data as to the number sold at each price, the master assumes that the lowest price was $11 per 1,000 for seven-sixteenths inch, and the highest price $14 per 1,000 for half inch; and as the difference in their cost is $2 per 1,000, tire variation in price would be $3. As the master has no means of knowing whether the number sold at the highest price was many or few, he here again rules that the burden of showing this is on the plaintiffs, and considers all the seven-sixteenths inch sold at $11, and all one half inch sold at $13 per 1,000. This, supposing the cost of making the half inch to be $2 per 1,000 more than the seven-sixteenths inch, would make the profit uniform per 1,000 on “seconds,” and damages are assessed on the number of carbons purchased by the defendant, as follows-:</p> <p>Carbons purchased.</p> <p>%inch. 7-16 inch. Profit per M.</p> <p>From Dec. 1, 1884, to June 1,1885 27,960 — $16.20 $452.95</p> <p>“ “ “ “ — 71,899 12.00 862.78</p> <p>Average interest from Mar. 1, ’85 — — 184.20</p> <p>From June 1, ’85, to July 1, ’85.. 6,460 — 18.10 116.92</p> <p>“ “ “ “ — 10,540 13.90 146.50</p> <p>Interest since July 1, 1885...... — — 31.60</p> <p>From July 1, ’85, to Jan. 1, ’86,</p> <p>seconds.................... 91,000 both sizes. 0.15 13.65</p> <p>Average interest from Oct. 1, ’85 — —• — 1.43</p> <p>From Jan. 1, 1886, to Meh. 5, 1887 250,500 both sizes. 1.60 400.S0</p> <p>Average interest from Aug. 1, ’86 — — — 22.00'</p> <p>$2,232.83</p> <p>Of this -sum one ninth is due to J. B. Ridall, $ 268.09</p> <p>And the balance to the Brush Company, im.: 1,904.74</p> <p>$2,232.83</p> <p>The plaintiffs filed the following exceptions to the report:</p> <p>1. That he does not find on the basis that the loss of profits to the Brush Electric Company, on the carbons bought of others, was the difference between the list prices of the Brush Electric Company and the cost, as proved and set out in the report, less the 10 per cent discount.</p> <p>2. The master errs, in finding and basing his calculations upon the notion that the plaintiffs would have sold, and the defendant would have purchased, the carbons called “seconds.”</p> <p>3. The master errs, in basing his calculation upon the purchase of “seconds,” especially as the evidence clearly indicates (there being nothing to the contrary) that of all the carbons, purchased of others, none of them were “seconds.”</p> <p>4. The master errs in his calculation and estimates, and in his methods of ascertaining and allowing of profits and commissions on said “seconds.”</p> <p>5. The master errs, in not taking such testimony as there was, to wit, that of Q-. W. Stokeley, as' to the cost and value of “seconds” to the Brush company, and thereby placing the cost and value to the said company at not exceeding one half of-the price at which they were sold.</p> <p>■ 6.' The master erred, in not finding upon the basis of the contract, and in undertaking to find respecting an article not contemplated in the contract, and being an accidental product sold exceptionally and without any market or list price.</p> <p>The exceptions were overruled, and the report confirmed, and a final decree entered, making the above decree of March 5, 1887, final and perpetual, and directing the defendant to pay to the plaintiffs $2,232.83, loss and damages, with costs.</p> <p>' From this decree the plaintiffs appealed, assigning as error the action of the court in not affirming the plaintiffs’ exceptions to the master’s report.</p> <p>There are two main propositions contained in our assignments of error:</p> <p>First, that the master erred in not treating the ordinary and usual product of manufacture, and sale of carbons — such as'this contract of March 31, 1883, necessarily referred to, and of which alone we'evér had a “list price,” as the articles upon which our loss was to be based and estimated. (See errors, first, second, third, and sixth.)</p> <p>Second, that if the said departure from the contract, as adopted by the master, was proper, that then he ignored the best and only reliable evidence as to cost or value to us of “seconds” carbons, and gave us but a fraction of the loss which we were entitled to upon that basis. (See errors, fourth and fifth.)</p> <p>Upon the first question we ask'to stand upon our contract rights, and that the contract be construed in respect to the circumstances surrounding it when it was made.</p> <p>The imperfect carbons, called “seconds,” were then, as at all times, produced by us, but only as a part of the refuse of our manufacture. Others sold them, but we did not. With a fixed customer to whom we could always sell “firsts” at a larger profit,, it is equally unreasonable to assume that we would have sold “seconds.” And the best evidence that the defendant would not have bought them is the fact that it bought none from others, never buying any but the three lots bought from us, in July, 1885, during its default to us, and when we had first commenced the experiment, since abandoned, of selling them, in place of using them as raw material. To this error our third exception is directed.</p> <p>By no reasonable argument, therefore, can the master be sustained in admitting the new, uncertain, and complicated subject of “seconds” under our contract</p> <p>On the second question, the testimony shows that, if this basis is to govern, fully one half of the price at which the master finds “seconds” to have been sold, would be profit.</p> <p>At his basis of the average selling price of the 91,000 and 250,500 supposed “seconds” carbons, the profit at one half would have been $2,049.00, and the average interest to July, 1887, $112.69, amounting to $1,723.81 more than the amount allowed by the master.</p> <p>If we are right on the first proposition, then our profits are of easy calculation, and amount to $6,229.95, with an average interest to July 1, 1886, to be added of $466.17, or $4,253.83 in addition to the amount allowed by the master.</p> <p>Before the master we contended that carbons had a market price, there being a large number of makers, and therefore the measure of damages was the difference between the cost to the Brush company and the market price. It was on this theory that a calculation was produced before the master, some items of which showed that the market price was less than the cost price as claimed by the Brush company.</p> <p>But another position taken by us he sustained, which was this: July 1, 1885, the Brush company began to put on the market two grades of carbons, firsts and seconds. Ridall began to sell these seconds, and so continued until some time in April, 1887, Avhen the Brush company ceased to furnish them. The only purchases made by us of Brush carbons between December, 1884, and March 5, 1887, Avere of these seconds. These purchases were two orders in July, 1885, and two in August.</p> <p>Then came the interlocutory decree of March 5, 1887, requiring us to buy none but the Brush carbons sold by Bidall. All our purchases from Bidall from that date, until the Brush company ceased to furnish them, a period of about two months, were of “seconds.”</p> <p>The master took our view and charged us with the profit of the Brush company based on “firsts” from December, 1884, to July, 1885, and on “seconds” from July 1, 1885, to the date of interlocutory decree.</p> <p>I come now to the argument on the other side. There are two propositions:</p> <p>First, the contract of March 31, 1883, confined the defendant to the purchase of firsts because they were the usual and ordinary product, and of Avhich alone there ever was a list price, and that the damages should have been fixed on that basis.</p> <p>Second, that if seconds Avers to be taken as the basis, then the master ignored the best evidence as to their cost and value.</p> <p>As to the first proposition, the defendant was not limited to, or bound to buy, “firsts” by the contract of March 31, 1883. The agreement in that paper on the part of the defendant is that it shall not purchase any other “carbons except those provided by the Brush company.” “Seconds” were provided by the Brush company; therefore we had the right to purchase them.</p> <p>But it is said the Brush company never had a list price of seconds; but it cannot be seriously contended that if the Brush company put one or more additional classes of carbons on the market, it could prevent us from buying them by refusing to make a list price. The term list price means the price at which the Brush company sells its goods. Besides that, the term as used in the contract refers merely to the basis upon which the discount to be allowed by Bidall is to be calculated, and nothing more.</p> <p>The second proposition, for the reasons already given, is radically unsound, either as a mathematical, business, or legal proposition. As a mathematical proposition, it ignores one of the main elements, the cost of the workmanship in the seconds. As a business proposition, it claims a false rule for profits; and as •a legal proposition, it asks the court to assume the value of the materials alone, but gives no certain data on which that value ■could be fixed, although that data was in the possession of the plaintiffs alone. The “best and the only reliable evidence” on this subject was that it cost as much to make a second as a first, .as the material and the labor were just the same.</p>

<p>In an action to recover for work done and materials furnished in the erection of a building, where it was agreed between the parties that the valuation of any changes from the original contract should be made by the architect, and where the architect has made two separate and different valuations of additions made to the work, held, that, xmder evidence of the value of the work, it was proper to submit to the jury the question which valuation was the eox'rect one.</p> <p>Note. — Where the contract provides that disputes shall be referred to an arbitrator, whose decision shall be final, his finding is conclusive. Gowen v. Pierson, 166 Pa. 258, 31 Atl. 83; English v. Wilmerding School Dist. 165 Pa. 21, 30 Atl. 506; McCauley v. Keller, 130 Pa. 53, 17 Am. St. Rep. 758, 18 Atl. 607; Robinson-Rea Mfg. Co. v. Mellon, 139 Pa. 257, 21 Am. St. Rep. 186, 21 Atl. 91; Thomas v. Ileger, 174 Pa. 345, 34 Atl. 568. The arbitration cannot be insisted upon, however, where the arbitrator is absent, or bas died (Fayette County v. Laing, 127 Pa. 119, 17 Atl. 801) ; or wliere the arbitrator refuses to proceed (Dougherty v. Shimer, 1 Luzerne L. Reg. 44) ; or where the arbitrator refuses to act, no provision being made for a substitution (Wolf v. Augustine, 181 Pa. 576, 37 Atl. 574) ; or where the parties waive the arbitration clause in the agreement (McKenna v. Lyle, 155 Pa. 599, 35 Am. St. Rep. 910, 26 Atl. 777; Whelen v. Boyd, 114 Pa. 228, 6 Atl. 384; Wright v. Susquehanna Mut. F. Ins. Co. 110 Pa. 29, 20 Atl. 716).</p>

October Term, 1887, No. 208, W. D., before Gordon, Cb. J., Paxson, Sterrett, aud Williams, JJ. Error to the Common Pleas No. 2 of Allegheny County to review a judgment in favor of the defendant Joseph Taggart.

October Term, 1887, No. 150, W. D., before Gordon, Ch. J., Paxson, Sterrett, Green, and Williams, JJ. Appeal from a decree of tbe Orphans’ Court of Allegheny County directing a sale of the real estate of William Neel, deceased.

October Term, 1887, No. 151, W. D., before Gordon, Ch. J., Paxson, Sterrbtt, Green, and Williams, JJ. Appeal-from a decree of the Common Pleas No. 2 of Allegheny County dismissing a bill in equity praying for an injunction to restrain defendants from entering in or npon an alleged private alley and from breaking down or removing gates across the same.

October Term, 1881, No. 153, W. D., before Gordon, Oh. J., Panson, Sterrett, Green, and Williams, The material facts of the case are as follows: Charles Vowinlde, the husband of Pauline Vowinlde, plaintiff in the feigned issue, was associated with Frederick Vowinkle as a partner in the wholesale liquor trade in Pittsburgh. The latter withdrew from the firm and Charles gave him certain promissory notes amounting in the aggregate to $15,000.

October Term, 1887, No. 124, W. D., before Gordon, Ch. J., Paxson, Sterrett, Green, and Williams, JJ. Error to the Common Pleas No. 1 of Allegheny County to review a judgment in favor of the plaintiff in an action of trespass on the case for injuries.

October Term, 1887, No. 144, W. D., before Gordon, Oh. J., Paxson, Sterrett, Green, and Williams, JJ. Error io the Common Pleas No. 1 of Allegheny Oonnty to review a judgment for plaintiff in an action on a case stated for the opinion of the court.

<p>A witness cannot be compelled to answer questions that would criminate himself, simply because, if prosecuted therefor, he can plead the-statute of limitations as a defense. It seems that a witness is protected’ against testifying as to any matters which might subject him to a criminal prosecution.</p> <p>A witness cannot be”compelled to answer the question whether he has. had at a certain time connection with an unmarried woman who was a. minor, but may be compelled to answer whether or not she was chaste at the time. In the latter case, if subsequently asked as to his means of knowledge, he may plead his privilege, if a further answer would criminatehim.</p> <p>In an action for breach of promise of marriage, proof of seduction cannot be given in aggravation of damages; and should the-court, while admitting the above to be the law, instruct the jury in such a manner as to> mislead them on this subject, it will be regarded as error sufficient for reversal.</p> <p>Note. — As to statutory exemption from prosecution as a substitute for constitutional exemption from giving self incriminating evidence, see presentation of authorities in editorial notes to Re Buskett, 14 L. R. A. 407; United States v. James, 26 L. R. A. 418. As to constitutional protection against furnishing evidence to be used against one’s self in a civil case, see-editorial note to Levy v. Superior Court, 29 L. R. A. 811.</p>

<p>Where a summons is issued against two as partners and both are served, but only one appears and pleads, it is error to proceed to try the case against both and enter a joint judgment against the two defendants. Such a judgment is not only bad against both, but is not good as against the one who appears.</p> <p>Where two persons are sued as partners and only one appears and pleads and he files an affidavit of defense denying the partnership and his indebtedness, it is error to admit as evidence the plaintiff’s affidavit of claim, either on the ground that because the other alleged partner filed no affidavit of defense and thereby admitted the claim so far as he was concerned, or because the affidavit of the defendant who appears can be treated as an admission of anything.</p>

<p>Where a road is partly in a borough and partly in a township the general road law applies and is not superseded and repealed by the general borough law.</p> <p>Where a road has been confirmed under the general road law, in order to defeat the proceedings on the ground of want of jurisdiction, it ought to affirmatively appear upon the record that the road is wholly within the borough.</p> <p>Where a road has been confirmed absolutely and the time for filing exceptions or review has fully expired, good and sufficient reasons must be shown to the court before the proceedings will be disturbed.</p> <p>Oited in Ee Cassville Eoad, 4 Pa. Super. Ct. 511, 513.</p> <p>Note. — That the quarter sessions has jurisdiction of a proceeding to open a road which lies in a borough and township is held .in Re Cassville Eoad, 4 Pa. Super. Ct. 511, the authorities being collected in the opinion of the court. The contrary is true where the road lies wholly in one borough, or in two adjoining boroughs. Re West liberty & K. Eoads, 20 Pa. Super. Ct. 586.</p>

October Term, 1887, No. 97, W. D., before Gordon, Oh. J., Panson, Sterrett, Green, and Williams, JJ. Error to the Common Pleas No. 2 of Allegheny County to review a judgment for the plaintiff in an appeal from a justice of the peace. This action was brought by S. T. Groom against W. A. .'Springer to recover the value of ten sheep.

<p>October Term, 1887, No. 183, W. D., before Gordon, Oh. J., Paxson, Sterrett, and Wii/liams, JJ. Error to the Common Pleas No. 2 of Allegheny County to review a judgment in favor of the defendant in an action of ejectment.</p> <p>This action was brought by H. C. Bughman, surviving trustee under the will of James TL Hays, deceased, against John M. Byers.</p> <p>The facts appear in the following portions of the charge of the court by Ewing, P. J.:</p> <p>The representative of the estate of James H. Hays, who died in March, 1876, brings an action of ejectment against John M. Byers, to recover a tract of land of irregular shape, containing a little less than an acre, situated in Mifflin township, a shout distance from the Pittsburgh, Virginia, & Charleston Railroad, and near the Monongahela river. . . .</p> <p>The case involves the location of an original patent line, a grant from the commonwealth. In 1769 a warrant was granted to Catherine Thompson for a tract of land in which was then Peter’s township, Washington county,' antedating nearly twenty years the formation of this county, and a survey made on the 26th of November, 1769, and a patent issued on the 2d of January, 1788, for a tract called “Liberty” or “Liberty farm.” On the 19th of November, 1791, a warrant was granted to the same ■Catherine Thompson for a survey of land adjoining this, and which was known as the “L” warrant from its peculiar shape. The “Liberty farm” is this large tract marked on the map- of Mr. McKoberts, and the “L” warrant land along the upper edgje of this — the larger portion of it, and then the narrow and irregular portion between here; (Indicating on map.) Catherine Thompson afterwards sold one part of this, the “Liberty farm,” to one party, and the “L” warrant tract to another.</p> <p>At an early da.y James H. Hays became the owner of the “Liberty farm,”' and Mr. Kinney, the elder, of the “L” warraitt farm, which he owned in connection with other land. ' Now, in a dispute over these matters, the right is in the older warrant and older patent. If they conflict — if there is actual interference — the older in time is the stronger in right. Mr. Kinney, in 1873, sold a small portion of this (two or three acres) to Mr. Byers, the present owner, and Mr. Byers now stands in the shoes - of Mr. Kinney.</p> <p>(Pointing to a map of Mr. McKoberts placed in view of the jury.) The plaintiff claims that this little strip running down the long line, and this, which includes the house, I believe about 122 feet in -width, and along this line, is over upon their ground. The Liberty farm in its general outline ran down hero (indicating on map), and then ran along the narrow strip fronting on the river, down to the river, below the main body of it. It is á ■singular shape, and why that was run along the Liberty farm, I •do not know, because at that early day river front was not usually considered as of much account.. But he has some 50 rods more front on the river than the body of the land would give it. Now, the dispute as to the actual line occurs on this long line, .and then as to the location of this line (indicating on map), the plaintiff wanting to make it farther from the river than the defendant wants it. The dispute on this line (long line) is very •slight; on this one running parallel with the river it is considerable.</p> <p>The defendant sets up two defenses: first, that it is not within the limits of the Liberty warrant, but is within the limits of the “L” warrant, and that the plaintiff, and those claiming through him, never had any title to it, which, of course, is a good defense; and the defendant being in possession, the burden is upon the plaintiff to satisfy you that it is within the original line and marks of the Liberty survey. They must establish that affirmatively. Then the defendant says in addition, that even if it was, if there is a mistake about that, nevertheless he and Mr. Kinney together have held it in possession for over twenty-one years, held it openly, notoriously, exclusively, and hostilely against everybody, and that that gives him the title; and if that be the fact, it does, even though they were mistaken about its being in the “L” warrant originally; even though it was in the Liberty patent. . . .</p> <p>. • The surveyors in this case, I think, very properly indicated that they gave only their best judgment as to where this line actually is. They were not positive. [In my judgment there is no man -who can undertake to say absolutely where it is. They give the probabilities and give their reasons for it. There is not any mark on the ground, that is, no comer, that is shown to be clearly a mark of the original survey. There is some of the evidence which shows a very strong probability of one at least being an original mark; and yet there is evidence that would negative that, or evidence tending to show it was a mistake.] [1]</p> <p>You will bear in mind that marks on the ground that are unequivocal will always control courses and distances in a survey. The lines are where they are located on the ground, even though the surveyor should make a mistake, as he often does, and did in those times, in both the courses and distances; and if two corners were fixed and a straight line between them, although the course might vary twenty or fifty degrees from the course given by the surveyor in his plan, and the distance might differ a half, still those two corners would control absolutely.</p> <p>[In old surveys, made at the time these were made, it is a rare thing where there is an accurate distance given. As a general rule, the distances measured out more than the old surveys gave. Sometimes, though, they fell considerably short. It ■was the custom then, when they did measure at all and not guess at it, when it was rough ground, to measure on the surface, and then make a liberal estimate for the amount to be added to make the level distance.] [2] ; and on rough ground there is more likelihood to b© a discrepancy than on smooth, and on level ground much less likely to be an error than where it is steep. The courses and distances on the “L” warrant are, many of them, evidently erroneous; and if this survey be correct, they are also erroneous on the Liberty tract. To start with this line (indicating) there is the hickory at this point; that is admitted to be common to the “L” warrant and to the Liberty patent. This line, upper line, across here is also on the line as I understand the warrant. The “L” warrant ran along there. They both called for 144 perches on this line. Now the Liberty patent calls for 197 perches on this line from hickory towards river, and the “L” warrant for 179. I would guess that that was a mistake in the scrivener writing 179 for 197, or vice versa. I suspect that the learned counsel for the plaintiff is correct in saying that many of the lines on the “L” warrant were not measured at all; that it was taken with other surveys, which was a very common thing in those days. [Hr. HcBoberts, and those who agree with him, are of the opinion they have found the true line by measuring from the hickory that they claim is evidently a corner. Yet there is no mark here.] [3]</p> <p>[All the old deeds call for the hickory, and some lines run in there, and the probabilities are exceedingly strong that that hickory is the original line or one very close to it. It was a common thing with old surveyors to mark side trees on the line; and they were not very particular as to whether they were on the line or off it, but' as a general rule they will give the general course of the line. They were not usually very far off the straight line, although on rough ground they were sometimes found'several rods off.] [4] [The plaintiff’s surveyors run out the distance called for in the original patent, stopping at 197 rods at.,-they say, a white oak stump. Now there is no evidence that that is the stump of the original white oak, further than that they stop at 197 rods, and there they find a white oak stump.] [5] They say, however, in addition, that it is the general line of those trees and the mark on the next line that they run across, called for in the original patent, with variation, I believe, in the distance, of 55 rods; and they say they found in that line a marked beech, and that they “blocked” it, and that it is very old. . . .</p> <p>They ran out that line then. The theory on which the surveyors for the plaintiff stopped at that distance on this line was the distance was accurately given in 1he original patent and warrant, and the distance on this line (i. e., the line' parallel with the river — indicating) was accurately mentioned on the warrant. Then, -when they came to the lower line of the patent they ran the course to the river, and Mr.-Mcltoberts 'says that instead of being 15 rods, it would be 50 feet longer. This is running out the line they ran which ought to be 15' rods from the bank of the river, by the patent line is 18 rods as the bank now stands. The testimony I think, uncontradicted, is that there is a fence on this line from the river up through the river bottom land, after it reaches the hill. It is bluff, I understand, some distance upand they claim that this is the proper location of their line. They give you that evidence and give th” probabilities. On the other hand, Mr. McOully makes a- measurement and he makes it fall a little further up on-the Liberty farm than they would, and he measured down on this distance 207 rods, and having found an angle he ran the 207 rods on this ground (indicating). He says that down some twenty-five rods he found a beech tree' marked, an old mark, which he took for a line and took that and ran the courses called for in the original papers until it would intersect. He ran the course called' for in the papers at any rate without less variation. From'that beech tree the intersection' of this long line called for in the original papers’cut it 207 rods from the hickory. But his course is changed some little. Now, to show that that distance is mot a very safe criterion to stop at, Mr. McRoberts. tells us that ho made a survey of the Liberty farm when he made this plot. Ho began at the railroad and ran back and gives us- the distance. He found this line at the upper line of the Liberty patent, the furthest away from the “L” warrant, to his satisfaction, although he did not find any original corner, and he runs across this long line that is common to the “L” warrant and the Liberty patent, and he makes it on his measurement 2,821 feet, which would be 171 perches, lacking half a foot, and yet his original patent and both patents only call for 144 perches;-so on that line on which he has satisfactory evidences of the comer there is the difference between 144 and 171 perches. Then on this other line he makes a difference of 3 rods. This short lino is 3 rods different from what the patent calls for, and if you believe the uncontradicted evidence, there is a considerable amount that has gone into the river from the time this original survey was made,' so that to make the corner that the plaintiff makes in connection- with the other things, they shorten this line from the river np 3- rods as the river bank now stands, and if you believe the testimony considerably more than that, and with this line lengthened from 144 to 171 perches, they stop short at the distance called for in the original survey on those two disputed lines.'</p> <p>[Now it may be that that white oak stump that they fixed as the cottier i-s¡the stump of the original tree called for in the patent line, but :it is- a marvel in surveying if they found right at the end .of: the .distance called for in that original survey the stump of the identical tree. It would occur very rarely, and yet it is some indication and very likely it may be very near the line.] [6] So it seems-to me that the surveyors are properly cautious when they - avoid expressing an absolute opinion as to just where the - corner, is.</p> <p>The verdict and judgment was for the defendant.</p> <p>The assignments-of error specified: (1-6) The portions of the charge included within brackets and indicated by exponents.</p> <p>That.the charge of the court had a tendency to mislead the jury, and that it was as a whole prejudicial to plaintiff’s cause, is, we think, very apparent. The court should have been content with a full and dispassionate submission of the facts to the jury. It has been.frequently held that the court is responsible for the general effect of its charge. Pennsylvania Canal Co. v. Harris, 101 Pa. 92; Garrett v. Gonter, 42 Pa. 143, 82 Am. Dec. 498; Pelf v.' Papp,- 3 Watts & S. 21, 37 Am. Dec. 528.</p> <p>If no particular instructions be asked, the court is responsible for the general effect only of the charge; and in considering the charge the whole of it must be taken together. If when so considered it has a tendency to mislead, although no particular portion of it be clearly erroneous, it is cause for reversal. Washington Mut. P. Ins. Co. v. Posenberger, 3 W. N. C. 16.</p> <p>Not only did the charge have a tendency to mislead, but through some misapprehension on the part of the court, statements of fact in direct conflict with-the testimony were made and dwelt upon at some length.</p> <p>In charging the Jury, the court below made use of maps; and the charge is largely unintelligible, unless when read in connection therewith.</p> <p>Suppose the judge below did mistake the evidence (as he did not) that is not assignable for error. The remedy is by motion for a new trial. Dennis v. Alexander, 3 Pa. St. 50.</p> <p>Such motion was made by counsel in the court below and overruled.</p> <p>But the court made no mistake in its charge as to matters of fact. Every excerpt carved out of the charge and assigned for error can be justified, when read in connection with the context, and when the charge is read as a whole.</p>

<p>October Term, 1887, No. 204, W. D., before Gordon, Oh. J., Panson, Sterrett, Green, and Williams, JJ. Error to the Common Pleas of Butler County to review a judgment in favor of the plaintiffs in an action of ejectment</p> <p>Ejectment by Daniel McLafferty, John McLafferty, Grace McLafferty, James L. Dougan, Sarah A. Dougan, and Hannah J. Dougan, against John Berg, John Berg, Jr., W. Weckerly, and George Gerhart, partners as John Berg and Company, to -recover two pieces of land in the possession of the defendants.</p> <p>■ The facts of the case as they appeared at the trial before Hazen, P. J., are as follows:</p> <p>In 1848 John McLafferty was the owner, without a patent, of 200 acres of land, a part of which was the land in controversy. McLafferty died intestate in 1848, leaving children, Edward, James, Ann, Dugan, Bridget, Sarah, and Mary, all of age. About ,1840, James, with the assistance of his father, built a house on the east end of the land and moved into it and continued to occupy it until his death iml878. After the death of John McLafferty, Edward resided the homestead dwelling with his mother and two unmarried sisters, and continued the farming in common with James.</p> <p>In January, 1857, James and Edward bought 53 acres from a neighbor named Speer. Part of this they subsequently conveyed away. In 1868 or 1870 James and Edward caused a division line to be run dividing the land into two portions. James reserved the two pieces of land now in dispute, one containing 30 smres of the lands of John McLafferty, the other partly of the same lands and partly of the Speer lands and containing 90' acres. James McLafferty had acquired a. patent from the commonwealth for all the old tract; and on October 19, 1870, he-executed a deed to Edward McLafferty for the western division of the land citing it by courses and giving other land of JamesMcLafferty on the east, and reciting title through James McLafferty by patent.</p> <p>About the time of the Speer purchase in 1857 a judgment wa^ entered by Speer against James and Edward and was kept revived until the division was made, when it was dropped as to-Edward and continued as to James and his heirs. The original note or bond on which the judgment was entered was not to be-found among the records, but the fi. fa. which was issued in 1880 .contained the memorandum on the back: “The right of inquisition and exemption laws waived and condemnation assented to.”</p> <p>A vend. ex. subsequently issued and the share of James was, sold to Berg & 'Company. ' In 1876 Wm; Denny bought at sheriff’s sale Edward McLafferty’s share of the land. In 1866,. Mary McLafferty died, leaving by will her interest in the land to Edward .and Sarah. On January 21, 1880, Edward and' Sarah conveyed all their interest in the John McLafferty tract: to Daniel McLafferty, a son of James. James McLafferty left-three children, Daniel,- John, and Grace. Ann McLafferty married one Dougan, and died, leaving three children, James, Sarah A., and Hannah J. The plaintiffs claim all the interest of Ann,. Mary, Edward, Sarah, and James in the land of John whatever it might be and.also claimed the interest of Edward and James-in the Speer tract. "" - - •</p> <p>At the trial Wm. Denny was offered as a witness for the defendants, and asked the following questions:</p> <p>Q. Did you know the time this property was up for sale by the sheriff referred to here, in 1880, March ? ,</p> <p>A. Yes, sir.</p> <p>Q. Were you here at that time ?</p> <p>A. I think not in.March.</p> <p>Q. Do you remember of seeing, of meeting Daniel McLafferty. here—</p> <p>Objected to by plaintiffs.</p> <p>Offered as part of the evidence to follow the offer of the records yesterday, to prove by the witness that he was present at the time that this property was advertised for sale by the sheriff; was interested; was a bidder; that just before the sale he had a conversation with Daniel McLafferty in which a deed in the line of this title, to wit: the deed of Wm. L. Speer to James and Edward McLafferty, was referred to as not being of record. As the result of the conversation Daniel McLafferty went home, brought up that deed and had it placed upon record before the sale, for the purpose of enhancing the value and realizing more money at that sale. This as part of the facts on which we rely as an estoppel; that .he was present and did afterwards bid more than he did before this deed was placed on record, and to show that Daniel McLafferty himself was present at the time of the sheriff’s sale.</p> <p>Objected to by the plaintiffs: first, because the facts offered to be proved were not brought to the attention of the purchaser at sheriff’s sale; no offer to show that he had any knowledge of them, or that they influenced him in the slightest degree: The competency of the witness William Denny is objected to, because James and Daniel McLafferty, the parties referred to a moment ago, and Edward McLafferty, are all dead. Wm. Denny and his two brothers Daniel and John, are the owners by virtue of the sheriff’s deed dated in 1876 of all the title and interest of Edward McLafferty, in and to that part of the John McLafferty tract lying west of the division line between James and Edward on the old McLafferty farm the witness was called and will be asked to establish. He is, therefore, incompetent to testify in this suit to matters which occurred in the lifetime of either James, Edward, or Daniel, which in effect would be to increase his interest in the land acquired through Edward by showing that he and his brothers acquired thereby the title of James and Sarah Ann Dougan to the land he now owns. The witness and his brothers claim to be, and are, the owners of Edward’s interest in the west end of the farm; and if his testimony would be permitted to show a division line, or parol partition, his interest would be increased to the extent of James’s interest in it, Sarah’s interest in it, and all of the parties who are affected and bound by the partition proposed to be proven. He is, therefore, if not interested in the result, interested in the question.</p> <p>Defendants’ counsel replies that the witness had no interest in. the result of this suit, and admits that William Denny and his two brothers, Daniel and John, are the owners of the west, end of the old John McLafferty farm by virtue of the deed of Edward’s hy the sheriff, none of which is described in the prsecipe, and marked off by lines alleged to have been made in 1868 -or thereabouts; that the title which Edward McLafferty had to this west end passed by the sheriff’s deed to the witness and ■others, was held by Edward by virtue of the deed from James McLafferty to Edward in 1870, and that no part of the land in which the witness has or had an interest is involved in this case, the land in dispute being exclusive of that described in the •sheriff’s deed referred to.</p> <p>The witness: John is also interested in this land; this west -end. There were three of us together.</p> <p>Q. (By plaintiffs’ counsel.) You and Daniel and John are the owners of the land ?</p> <p>A. Yes, sir.</p> <p>Plaintiffs’ counsel admits that the title is in Daniel Denny, but that John and William are interested in it also.</p> <p>Plaintiffs’ counsel objects further, that since the bringing of this suit an action of ejectment has been brought and is now pending, against William Denny and others for the land described as the west end of this tract, and bounded by the alleged line run at the parol partition, and that William Denny has appeared in court and is defendant, on the ground that there was a partition made that he is called upon to prove.</p> <p>By the Court: “Objection sustained. We let it go to his competency to testify to things occurring in the life of the parties.”</p> <p>EH</p> <p>Defendants’ counsel next offered to confine the testimony of the witness to matters occurring since the death of James Mc-Lafferty, but in the lifetime of Daniel Me Lafferty.</p> <p>By plaintiff’s counsel: The interest, whatever it was, of James McLafferty in the land in dispute, having, upon his death in 1878, devolved upon his heirs, among whom was Daniel Mc-Lafferty, and he having died in 1884, and his interest therein having devolved upon his heirs, the present plaintiffs, the witness is, by virtue of the rule just enforced in the former offer, incompetent to testify, to the prejudice of the plaintiffs or adverse to their interest, to any matters which took place before the death of their ancestor, Daniel, in 1884, but he is competent so far as Daniel is concerned to testify to any matters which have occurred since his death, and to that part of his testimony no objection is made.</p> <p>By the Court: “Objection sustained.” [2]</p> <p>' Defendants’ counsel then proposed to show by the witness: First, that he had no interest in the land in dispute whatever, and never had; never claimed any; nor in the result of this suit; second, to show by him that he was present at a parol partition or division of this land made in about 1868 between James and Edward McLafferty; was present at the request of one or both of the parties.; saw the line run upon the ground, and possession held by them corresponding to that line thereafter, at a time-when, the witness was not interested and had not become interested in another part of the old McLafferty tract, which partition was assented to or acquiesced in by Sarah McLafferty — this,, for the purpose of showing that parol title passed to the plaintiffs or any of them by virtue of the deed offered in evidence by the plaintiff, from-Edward'and Sarah McLafferty to Daniel McLafferty.</p> <p>Objected to by plaintiffs’ counsel, it having been admitted that the witness is interested in the title of the west end of this John McLafferty tract, the value of which and the quantum of interest therein depends solely, as far as this offer is concerned, upon establishing by his testimony a parol division and line run in 1868, between Jas. McLafferty and Edward McLafferty, the witness’s vendor, by virtue of which parol division or partition the witness’s title became absolute in'severalty to the entire west end, if the parol division and line can be, by his testimony, established to the satisfaction of the court and jury. He is therefore-disqualified, as the parties interested would be affected thereby, having acquired their title by devolution upon the death of their ancestors.</p> <p>By defendants’ counsel: The title of Edward McLafferty now-held by the witness and others, in the west end of the Mc-Lafferty tract, not now in dispute, or involved in this issue, rested, not upon the parol division referred to, but upon the deed made by James McLafferty and wife, to Edward McLafferty in, 18JQ; and whatever interest or estate the witness and his-brothers have in this west end, is that which passed by the deed of' Jas. McLafferty referred to.</p> <p>By plaintiffs’ counsel: The quantum of interest which James. could or did convey in 1870, whether a mere friend’s interest or a proven title, depended upon the fact-whether or not-he had acquired title to the entire east end, by virtue of the partition the witness is offered to prove. '</p> <p>By the Court: “Objection sustained.” [3] ■</p> <p>Defendants’ counsel next offers to prove by the same witness that James McLafferty, now deceased, entered into actual possession of the land in dispute about the year 1841, caused a house to be erected thereon, moved into it with himself and family, afterwards erected a barn, cleared, fenced, planted orchards, and. improved it, claiming it as his own, receiving the rents' and profits exclusively from that time, and continuing from 1841 until the time of his death in the continuous, peaceable, uninterrupted possession and occupation of the property, adverse to all until the time of his death in 1878 — this for the purpose of showing that he had acquired title under the statute of limitations, and that an ouster, not actually shown, ought to be inferred by the juTy from this state of facts, and to show that his possession was adverse and hostile to the world, and that the witness is not interested in the land in controversy and never was.</p> <p>Objected to by the plaintiffs. The competency and relevancy of the testimony in the abstract is conceded ;• but the competency of the witness is objected to for the reason stated in the former objections.</p> <p>By the Court: “Objection sustained.” [4]</p> <p>Plaintiffs’ counsel next offered the testimony of Edward Mc-Lafferty, taken on the former trial of this case in rebuttal, Edward having died since his testimony was taken.</p> <p>' Objected to by the defense, because Edward McLafferty was a party to the parol division and partition referred to by witnesses, and that the parties plaintiff now stand in his room and stead, and that the other party to that parol division, James Mc-Lafferty, under whom we claim, died in 1878, and Edward Mc-Lafferty being present would therefore be incompetent. as a witness.</p> <p>■■ Plaintiffs’ counsel replied: It is already in evidence that all the interest of Edward McLafferty, and all his title and claim was devested by the sheriff’s sale in 1876, and vested in William Denny, indorsed to himself and his brothers Daniel- and John. At the time Edward testified he was neither a party to. the record nor interested in the question ór thé result, and' was therefore in ©very sense competent to testify, and (having died since his testimony was taken) he was competent to testify at the time it was taken; in addition to that it is also in evidence that he released, by a quitclaim deed, for a consideration of $1, to Daniel Denny, all of his interest or possible interest in the land in dispute in 1880; so that under any view, and without the acts of 1869 and those since, Edward McLafferty was a competent witness at that time, and being dead his testimony is now competent.</p> <p>By the Court: “Objection overruled.” [5]</p> <p>Col. Thompson, a witness for plaintiffs, was asked this question :</p> <p>Q. Did you act as counsel for the administrator ?</p> <p>A. Yes, sir.</p> <p>Q. State, when this judgment on which this sale occurred was confessed, or the different persons named as children and heirs of James McLafferty, deceased, whether you had any special employment, or any authority, or whether any of them spoke to you in reference to that, or authorized you.</p> <p>Defendants’ counsel: We will have to object to this until we know the purpose.</p> <p>Plaintiffs’ counsel: This is for the purpose of showing that Grace McLafferty, John McLafferty, and Edward McLafferty, the children and heirs of James McLafferty, did not employ counsel nor authorize the confession of judgment in this case— to be followed up by proof that they were not present at the sale; that they participated in it in no way; that they did not consent to it; that they received no part of the proceeds and authorized no one to receive any for them; for the purpose of rebutting the allegation of acts on the part of those persons on which an estoppel is to be based.</p> <p>Objected to: first, because it is not rebuttal — the main part of the offer; and second, it is not competent to contradict a record of the court which seems to be the purpose of it and can be its only purpose. It is further objected to as being incompetent, for any purpose, because it could not affect the rights of a purchaser at sheriff’s sale, who was hound by what the record of the court showed; and that cannot be changed or contradicted now so as to affect him.</p> <p>By the Court: “Objection overruled.” [6]</p> <p>The defendants offered, inter alia, the following points:</p> <p>8. If the jury believe and find from the evidence that the fund arising from the sale of the land in dispute was distributed by decree of court, after due proceedings of law, to the creditors of James McLafferty, deceased, and was paid out without objection from the defendants in the execution; that part of it was appropriated to the payment of fees of the attorney for said estate and the heirs of the said James McLafferty; that objection was made to the application for a stay of the writ for the sale of said land by the sheriff, on other grounds than that of a Avant of waiver; that the deed was placed on record the day before the sale, to wit: the deed for the Speer tract to James and Edvrard McLafferty, most of which was embraced in the levy, and that, the defendants in the Avrit removed from said land Avithout writ of possession or other process commanding them to surrender possession, and peaceable possession taken by the purchaser and acquiesced in by the defendants in the writ for a long time prior thereto, they and those claiming under them are estopped from alleging want of waiver of inquisition, if there be no waiver; and the sale being made on the vend. ex. passed title to the defendants here, the purchasers at the sheriff’s sale.</p> <p>Ans. “Refused.” [7]</p> <p>10. If under the testimony of Edward McLafferty offered by the plaintiffs as well as the evidence offered by defendants showing that, by the parol division between Edward and James, the balance of the Speer purchase fell to James McLafferty and thereby vested in him, the plaintiffs cannot recover for it in this case.</p> <p>Ans. “Refused.” [8]</p> <p>The plaintiffs presented, inter aliai, the following points:</p> <p>3. If James and Edward attempt to set up the statute against their sisters, they must rebut the legal presumption that they held for the benefit of all, by express proof that the holding was not in hostility to them.</p> <p>Ans. “Affirmed.” [9]</p> <p>4. The statute of limitations did not begin to run against their sisters until the commission of some notorious, hostile act, inconsistent with the rights of their sisters.</p> <p>fi?¡s. “Affirmed.” [10]</p> <p>5. There is no sufficient evidence of the Avaiver of inquisition by writing filed, or otherwise; and the sale'by the sheriff passed no title. i ■ ' '</p> <p>' Ans. “Affirmed,” [11]</p> <p>8. To constitute an estoppel the jury- must, find that the plaintiffs connived at or consented to a sale of'the land, surrendering possession thereof to the purchaser.voluntarily; consent■ed to the appropriation of the proceeds to the judgment of their ’ancestor, and mere non-action-on their part‘of-the distribution •of the money by the law will not work an estoppel. ■</p> <p>’ Ans. “Affirmed.” [12] •</p> <p>13. The alleged partition by James and-Edward bound none -of the other heirs, unless they were present or authorized it to be done, or afterwards consented thereto and ratified it.</p> <p>Ans. “Affirmed.” [13]</p> <p>.14. The testimony on the part of the defendants, even if true, :is not sufficient to supply the want of the wuiver 'of inquisition, nor to estop the plaintiffs from setting it up in this suit, though want of inquisition, and the verdict must be for the plaintiffs for all the land described in the writ. '</p> <p>'An*. “Refused.” [14] ■</p> <p>15. That the receipt of $15 on the auditors’ report by. Col. ‘Thompson, cannot operate as an estoppel against Daniel, Grace, .-and John,' unless they received the money or a portion . of it from C.ol.' Thompson,1 and knew that he received it, or were af•fected by it — or ratified and confirmed the receipt of it by. him.</p> <p>Ans. “Affirmed.” [15] ■ • .</p> <p>16. If the'jury find that the sale was made without inquisi-tion or waiver thereof, and that the plaintiffs are not estopped hy anything- done, or omitted to be done by them, from, setting up the want of inquisition, then in that event the question of the .'statute of limitations does not arise; and the verdict must' be iforthe plaintiffs for all'the land described in the writ, t-</p> <p>Ans. “Affirmed.” [16].</p> <p>Verdict and judgment fqr plaintiffs.</p> <p>The assignments of error specified: (1-6) The rulings on1 the •evidence; and (1-16) the answers to the defendants’ and plaintiffs’ points as above. •</p> <p>To exclude' the testimony of a witness on the ground of interest he must have had some legal, certain, and immediate pecuniary interest in the result of the issue. In this case Wm. Denny certainly had no pecuniary interest. Bennett v. Hethington, 16 Serg. & R. 195.</p> <p>The court erred in refusing our eighth point as contained' in the seventh assignment of error. Berg. v. McClafferty, 1 Sad. Rep. 286.</p> <p>It was the duty of the defendants in error who had full knowledge of the sheriff’s sale to object in a reasonable time. They knew that the property was advertised for sale at March court, 1880, when Daniel McLafferty had the writ stayed on his own application, on grounds other than the want of waiver or condemnation. They encouraged bidders by placing the Speer deed on record for part of the land sold the day before the sheriff’s sale in June, 1880. They saw John Berg & Company’s bid appropriated to the debts of James McLafferty, by the auditor.</p> <p>"Wm. Denny is interested in maintaining and proving the parol partition of this tract of land and is therefore incompetent. Karns v. Tanner, 66 Pa. 302; Arthurs v. King, 84 Pa. 530.</p> <p>The ease is narrowed down to a question of estoppel, and all the facts alleged to sustain it are presented in the eighth point of the plaintiff in error. It asks the court to say that if the proceeds of the sheriff’s sale were distributed by decree of the court, and part thereof appropriated to the attorney, John M. Thompson, it would raise an estoppel. This court has said a score of times that the distribution of a fund like this is not the act of the debtor, a fact none the less because it is the law as well. The court and not the debtor controlled the fund, and it would seem unreasonable to visit the debtor with adverse results, based wholly upon the action of the court, which he could neither prevent nor modify. Equity is not found seeking for a pretext to rob the debtor, by showing the acts of a court, independent of the debtor and everybody else. Gardner v. Sisk, 54 Pa. 507.</p>

October Term, 1887, No. 68, W. D., before Gordon, Oh. J., Paxson, Sterrett, Green, and Williams, JJ. Held: or to contest the suits ourselves to a successful issue; and so, by the promise of the one thing or the other, the plaintiffs had been induced to lie down and take no watch for themselves.

<p>January Term, 1886, No. 449, E. D., before Mercur, Ch. J., Gordon, Paxson, Truneey, Green, and Glare, JJ. Error to Common Pleas No. 4 of Philadelphia County to review a judgment in favor of the plaintiffs in an action on the case for damages to a building.</p> <p>This action was begun on May 27, 1884, by Henry S. Grove, Wm. H. Grove, Clare E. Moore, Addie G. Moore, Conrad S. Grove, and George W. Grove, heirs at law of Conrad S. Grove, deceased, against John K. Barclay, to recover damages to the property No. 129 North Water street in the city of Philadelphia, caused by the refusal of defendant to remove certain machinery therein stored.</p> <p>The facts are stated in the charge of the court, by Arnold, J.</p> <p>At the trial Henry S. Grove, a witness for the plaintiff, was asked the following question:</p> <p>“Q. To what extent did this machinery, engine, boiler, smoke stack, etc., interfere with your use of the property for any purpose for renting it or for storage ?” Objection. Objection overruled. [1]</p> <p>Questions of a similar nature as to the condition of the property were asked other witnesses and were objected to by defendant. The court in each case overruled the objections. [2-11]</p> <p>The court refused to permit the defendant to prove by John B. Stevenson that the machinery could have been removed for $200 and stored for less than $100. [32]</p> <p>The court charged as follows:</p> <p>Andrew 0. Barclay owned property No. 43 North Wharves, and numbered, as you have been told, 136 Delaware avenue, and also 129 North Water street. On the 1st day of December, 1856, he leased that property to the partnership firm of Boyer & Barclay, for use as an oil mill for one year, at $2,200 a year. Andrew O. Barclay also owned the adjoining property on the south, No. 127 North Water street; and on the 31st of December, 1859, he leased the two properties, 127 and 129 North Water street, and the machinery therein, to that firm of Boyer & Barclay, for the purpose of manufacturing oil, for five years at $3,400 a year.</p> <p>On April 1, 1863, Andrew O. Barclay conveyed to A. Charles Barclay the property No. 129 North Water street, which is the property which has given rise to this litigation, for $13,000, which was paid or secured to be paid by a purchase-money mortgage for that amount. On that same day, April 1, 1863, Andrew 0. Barclay conveyed to the defendant, John K. Barclay, the adjoining property, 127 North Water street, for $16,000, which was paid, or secured to be paid, by a purchase-money mortgage of that amount.</p> <p>On the same day, the 1st of April, 1863, John K. and A. Charles bought from Andrew C. Barclay his interest in certain machinery then in the tenancy of Boyer & Barclay, at No. 136 North Delaware avenue (or No. 129 North Water street), consisting of steam engines, sundry boilers, shafting, etc., for $16,-000, for which they gáve their bond for that amount, payable in one year, and that bond was subsequently paid. You will, therefore, remember that on the 1st day of April, 1863, A. Charles Barclay became the owner of No. 129 North Water street, which is the property giving rise to this dispute, and on the same day John K. Barclay became the owner of the adjoining property 127 North Water street, and the same day they became joint owners of all the machinery in those properties.</p> <p>Mr. Boyer, a member of that firm, retired in April, 1864; and then the defendant, John 3L Barclay, and his brother, A. Charles Barclay, continued the business, under the name of Barclay & Barclay, until January 1, 1871, when they dissolved partnership and went into a court of equity for settlement of their business, and they are there yet.</p> <p>After the dissolution of the firm of Boyer & Barclay, in 1864, it was agreed that the assets of the firmj excepting book debts, flax seed, and loans, should be appraised; and the defendant testified that the assets were appraised at $40,000 and that he bought them at that sum, but that notwithstanding his purchase his brother, A. Charles, afterwards claimed to be a joint owner of that machinery, and that he made that claim in the equity suit for a settlement of the partnership.</p> <p>On June 20, 1873, that is, two and a half years after the dissolution of the firm, A. Charles Barclay conveyed the real estate No. 129 North Water street to Conrad S. Grove, for $6,000, subject to the mortgage of $13,000, who, on December 17, 1873, wrote a letter to John K. and A. Charles Barclay, requiring them to remove the machinery in that property, No. 129 North Water street, within ten days, and informing them that unless they did remove it, he, Grove, would sell the machinery at public sale, at their risk and expense.</p> <p>To this letter A. Charles Barclay made no reply; but the defendant, by his counsel, on December 19, 1873, reminded Mr. Grove that he (Grove) bought with knowledge of the complications in regard to the property, and that he knew that the smoke stack (and these were the words of John K. Barclay) was part of the machinery; that the ownership of that machinery and real estate was in dispute before a master in chancery, and that he (Barclay) would hold him (Grove) responsible for any damage that he (Barclay) might sustain through him (Grove) by reason of any interest he (Barclay) may or can have in said real estate, machinery, etc. That is to say, A. Charles Barclay made no denial, no reply, and no answer even to Mr. Grove’s taking upon himself to remove the machinery. John K. Barclay did answer, and claimed that the smoke stack was part of the machinery, and that the right to the real estate was in dispute, and that he (Barclay) would hold Grove responsible for any damage done to that property.</p> <p>When Mr. Grove got this letter, he desisted from his purpose of selling the machinery, and he filed a bill in equity, as you have been told, against John K. and A. Charles Barclay, to compel them to remove the machinery and pay damages for keeping it in the property. The answer of the defendant, John K. Barclay, in that suit was read to you. He admits in his answer that A. Charles Barclay has made no defense to the claim of the plaintiff for the removal of the machinery, but allowed the complaint to be taken as true, and submitted himself to the judgment of the court; while John K. Barclay refused to remove the machinery, and claimed what is called an easement in the real estate — that is, the right to subject that real estate to the burden of having the machinery kept on it during his pleasure.</p> <p>[After several years’ litigation, as you have ben told, that suit in equity was appealed to the supreme court, and the complaint was there dismissed, on the ground that the plaintiff should have commenced a suit at law instead of in equity, the difference being that in a suit at law the damages for keeping the machinery would be assessed by a jury, while in equity, they are assessed by the master in equity without the aid of a jury; that is, that he had brought his suit in the wrong court, and they turned Him out of equity and said he must go into a court of law before a jury, where he is now.] [31]</p> <p>Grove died December -28, 1874, and this real estate, 129 North Water street, thereupon descended to his heirs, who are the present plaintiffs. On August 24, 1883, these plaintiffs conveyed the property to George G. Barclay and John M. Kennedy, paying the grantees $1,000 to take the property off their hands subject to the mortgage of $13,000. The heirs have brought this suit against John K. Barclay, and claim to recover damages from him for the obstruction or interference with their enjoyment and use of the property from May 27, 1878, which is six years prior to the time this suit was brought, until the time they conveyed the property to George G. Barclay and John M. Kennedy. That is their claim.</p> <p>[I instruct you, therefore, that if Conrad S. Grove was a bona fide purchaser of the property, and the defendant resisted and denied the right of the plaintiffs and refused to vacate the property and take the machinery out, without any just claim of right, then the plaintiffs are entitled to recover in this suit for the damages caused by the obstruction of their use of the property by the unreasonable persistence of the defendant in the possession of the property without right. That is to say, if Mr. Grove was a bona fide purchaser of the property for value, and the defendant unreasonably and unwarrantably persisted in keeping the machinery in the property after he was notified to take it out, then these plaintiffs are entitled to recover damages for the interference with or the obstruction of their use of the property by his machinery in it.] [32]</p> <p>[On the subject of good faith in the purchase of the property, I see nothing to impugn the title of Mr. Grove or his heirs. Ho appears to have purchased in the usual and ordinary way, by a deed; and the grantor, A. Charles Barclay, came to the stand and testified that he had put a bill for sale on the property, having openly exposed the property to sale for some time, and that the consideration money, $6,000, was actually paid to him by Mr. Grove.</p> <p>If this testimony be true — and there is no denial of it on the part of the defense, except by way of argument of counsel, there being no testimony here to deny it — then Conrad S. Grove was a bona fide purchaser, and was entitled to possession subject to the rights of any tenant he found there.] [33] When he went to the building he found the machinery there, and also the shaft extending through into the adjoining building. If he had made inquiry of Mr. Barclay in the adjoining building, he would have learned that the two brothers at one time occupied the two buildings as an oil mill; that the partnership had been dissolved for two and a half years, and that they were at that time in the court of equity for a settlement of the partnership disputes, and that A. Charles Barclay claimed to own one half of that machinery. [John K. Barclay’s claim to an easement in that property, even if he had made it then, would not be a valid claim. The mere fact that the Barclays made improvements, or betterments, as they call it — dug out the cellar, dug a well, underpinned the walls, put in girders, and otherwise added to a permanent improvement of the property, would not make them co-owners of it, or subject it to an easement or servitude to the adjoining property, for no man or no tenant can, by improving leased property, thereby improve himself into the ownership of it.] [34]</p> <p>[Therefore, the claim of the defendant to an easement or ownership is no-t well founded, and presents no obstacle whatever to the plaintiffs’ claim in the case. If you believe that Conrad S. Grove was a bona fide purchaser for value, and that the defendant refused to remove the machinery, then the plaintiffs (that is, the heirs of Conrad S. Grove) are entitled to recover damages for the obstruction to their use of the property, to be measured by the extent that the obstructions deprived them of the use or enjoyment of it, or by the annual value of the property, less any use that they might have had or did have of the property.] [35]</p> <p>[Some of the witnesses have testified that the property, in good order, was worth or would rent at $2,000 or $2,500 a year, and that the interference of the defendant was to the extent of 60 or 66 2-3 per cent of the annual value. The counsel for plaintiffs put their claim at $1,200 or 60 per cent of $2,000, claiming that they might have got $2,000 for the property if they had had it in possession to rent, and that the machinery obstructed it to the extent of 60 per cent; and therefore the plaintiffs claim from this defendant 60 per cent of $2,000, or $1,200 per year, during the time for which this suit was brought. The defendant alleges that the property was in such bad condition that it would not rent for anything; but he overlooks the fact that, as the plaintiffs were kept out of the property by the defendant, there was no inducement or encouragement to the plaintiffs to keep up the condition of the property, while the defendant was obstructing them in the enjoyment of it, until in desperation they let it fall into such a condition of dilapidation, by nonrepair, that they at last paid other parties $1,000 to take it off their hands. ] [36]</p> <p>The plaintiffs cannot recover the loss of the capital value of the property; they cannot recover anything for the dilapidation or destruction of it, for they might have kept it up; [but they have a right to recover what they lost annually by reason of being prevented or obstructed by the defendant in the use of it, or from obtaining any income for it, if you believe that he did obstruct or interfere with them in the use and enjoyment of the property.] [37]</p> <p>My attention has been called to the fact that I said that Boyer retired from the firm in April, 1864, and then the defendant, John K., and his brother, A. Charles Barclay, continued the business under the name of Barclay & Barclay until 1871. It seems, however, I made a mistake about that; that the two Bar-clays continued the business until 1866, and then it was dissolved and their dispute began.</p> <p>Next it appears also that I have told you that John K. Barclay said he bought all the assets of the firm, including this machinery, for $40,000. Now counsel tell me that he did not say he bought all the machinery at that price. I was wrong so far as I have so instructed you, and I will correct it by saying that he did not claim to have bought all the machinery at the appraisement; that he bought all the new machinery, not the old, for which the $16,000 was expended. [In the rest of the answer to the point, however, I told you there was no evidence that A. Charles Barclay had ever made any claim to keep the machinery in the building, and the defendant himself, in his answer in the bill in equity, says that A. Charles Barclay made no defense; he confessed the justice of the plaintiffs’ claim, and there was no reason why they should not have treated John K. Barclay as the defendant. The action sounds in tort; and ■where a man has a wrong committed upon him by a number he has a right to pick out one or two and let the rest go. These Grove heirs have seen fit to fire their shaft at John K., and let A. Charles Barclay go, and they had a right to do it. Whether it was proper or fair or not is another question, but in law they had a right to do it,] [38]</p> <p>The defendant submitted the following points:</p> <p>1. The three conveyances, all bearing date April 1, 1863, of premises No. 127 North Water street (131 North Delaware avenue), to John K. Barclay, of No. 129 North Water street (136 North Delaware avenue), to A. Charles Barclay, and the machinery, etc., to the two jointly, form part of one transaction and are to be interpreted together.</p> <p>Ans. I refuse that point. [13]</p> <p>2. In view of the nature of the property assigned to John K. and A. Charles Barclay jointly by the assignment of April 1, 1863, and of the fact that it is part of a large transaction of which the conveyances of the real estate on the same date form part, that assignment authorized the owners of the machinery, etc., thereby assigned, to maintain and use it in the several houses.</p> <p>Ans. I refuse that point. [11]</p> <p>3. If the jury believe that the buildings Nos. 131 and 136 N. Delaware avenue (127 and 129 N. Water street) were acquired by John K. and A. Charles Barclay respectively for the purpose of a business of a firm of which they were members, and that that firm subsequently expended large sums of money in placing permanent machinery therein and in betterments to the buildings, for use in connection with the partnership business, the firm thereby acquired an interest in the real estate against the said Barclays, and any who purchased with notice.</p> <p>Ans. That point I refuse in those terms. The evidence shows that the partners acquired and treated the real estate as separate properties, and that they charged and received annual credit for rent therefor in the books. It was never treated as joint partnership property. [15]</p> <p>1. If the jury believe that during the ownership of the two houses by John K. and A. Charles Barclay, the firm of which they were both members, with the knowledge and concurrence of A. Charles Barclay, expended large sums of money on permanent machinery, etc., in the building owned by John K., which depended for its motive power and for its use on the machinery, etc., in the building of Charles, owned by the two jointly, this gave the firm or John K. Barclay a right to maintain and use the said machinery, etc., in the building of Charles.</p> <p>Am. I refuse that point. [16]</p> <p>5. If under the charge of the court the jury believe that at the time the plaintiffs’ ancestor, Conrad S. Grove, purchased the house No. 136 North Delaware avenue, it was involved in a proceeding in equity then pending, and still pending, to settle the affairs of a firm in which his vendor and this defendant were partners, the plaintiffs cannot maintain this action against this defendant alone, while the said proceedings for the settlement of the affairs of the firm are pending.</p> <p>Ans. I refuse that point. [II]</p> <p>6. The remedy of the plaintiffs, and of their ancestor, was to he made a party to the proceedings in equity for the settlement of the affairs of the firm of which the Barclays were members.</p> <p>Ans. I refuse that point [18]</p> <p>7. According to the evidence, A. Charles Barclay, the vendor of the plaintiffs’ ancestor, was a joint owner of the machinery, etc., with the defendant, and liable, at least, jointly with him. If the jury believe that the plaintiffs have conveyed the property back to him through George G. Barclay and John M. Kennedy, and settled any claim against him, the claim against this defendant is thereby discharged.</p> <p>Am. That point I refuse. There is no evidence on which the jury could find that the plaintiffs had settled with A. Charles Barclay. [19]</p> <p>8. In this action, and under the declaration, the cause of action is the failure to remove the machinery, etc. This cause of action (if any such there was in the plaintiffs) was complete more than six years before suit was brought, and the verdict must be for the defendant.</p> <p>Am. I refuse that point. [20]</p> <p>9. The measure of damages under the declaration (if under the charge of the court the verdict is for the plaintiffs) is, at the most, the reasonable cost of removing the obstructions.</p> <p>Ans. I refuse that point. [21]</p> <p>10. The plaintiffs having failed to remove the obstructions, they are only entitled to nominal damages.</p> <p>Ans. I refuse that point. [22]</p> <p>11. Tbe rental value of tbe premises is not tbe measure of damages.</p> <p>Ans. My answer to tbat is the rental value is an element from which, with others, tbe damages to tbe plaintiffs can be ascertained. It is not a binding rule, but it is an element you will consider in estimating tbe damages; because tbe plaintiffs are entitled to damages by reason of tbe obstruction or interference with tbeir right of enjoyment of the property. [28]</p> <p>12. Tbe plaintiffs were required to take all convenient means to reduce tbeir damages; and if tbe jury believe tbat, relying on tbe supposed liability of tbe defendant, they voluntarily failed to take proper measures to secure an income from tbe building, and tbat by reasonable exertions such income might have been secured, this may be considered in mitigation of damages.</p> <p>Ans. Tbat point I affirm. Tbe defendant is not to be charged with any income which tbe plaintiffs might have received from tbe property if they bad taken proper measures to secure such income, but- be is chargeable with any income which tbe plaintiffs lost by reason of bis encumbering of the building and interfering with tbe use and enjoyment of it. [24]</p> <p>13. It was tbe duty of tbe plaintiffs, in order to reduce tbe damages, to remove tbe alleged obstruction within a reasonable time, which time bad elapsed more than six years before suit was brought. Tbeir claim as set forth in tbe present declaration is therefore barred by the statute of limitations.</p> <p>Ans. I refuse tbat point. Tbe plaintiffs bad a right in view of tbe position which tbe defendant assumed in tbe letter of December 19, 1813, and tbe language of tbe supreme court in this very case, “to elect to let tbe machinery remain where it was,” and sue tbe defendant for use and occupation of tbe property, or for damages for tbe obstruction of tbe enjoyment of tbe property, and they have sued for tbe latter. [25]</p> <p>14. As tbe size and character of tbe machinery, etc., upon the premises in question were of such a nature as to interfere with their entire use, Conrad S. Grove, when be bought the premises, was bound to inquire as to them, and tbe rights of tbe owners of the machinery, etc., therein, and be and bis heirs must be presumed to have known what tbe rights of John K. therein were as against A. Charles Barclay, and if A. Charles could not have compelled John K. Barclay to remove tbe machinery, etc., tbe plaintiffs can have no greater right to compel such removal, or to maintain this action against the defendant, than A. Charles Barclay had when he conveyed the premises to Conrad S. Grove.</p> <p>Ans. That point is answered in the general charge. [26]</p> <p>15. That under all the evidence in the case, upon both sides, neither Conrad S. Grove nor his heirs can have any greater rights in the premises than A. Charles Barclay had at the time he conveyed to Grove.</p> <p>Ans. That point is answered in the general charge. [27]</p> <p>16. That, as the rights of A. Charles and John K. Barclay to the machinery, etc., were in dispute in the partnership bill filed by the former, A. Charles could not maintain any action for the nonremoval of the machinery, etc., against John K. Barclay, as he could have removed the same himself, or have applied to the court in which said bill was pending for the appointment of a receiver to take charge of and remove or sell the same, or for such other relief in the premises as the said court might think him entitled to in the circumstances.</p> <p>Ans. I refuse that point, and for additional answer refer to the answer to point 13. [28]</p> <p>17. That if the jury find that A. Charles and John K. Barclay were each half owners of the machinery, etc., costing $16,-000, and that this item included the smoke stack and other betterments, A. Charles had no right to require John K. Barclay to remove the smoke stack and other betterments from the premises in question, and could not maintain an action against him for neglecting or refusing so to do.</p> <p>Ans. That would be so but for the letter of December 19, 1873, in which the defendant asserted that the smoke stack was part of the machinery, and included in the ban contained in that letter. Therefore, Grove, who was the owner of the property, has a right to complain of the obstruction or interference as much from the smoke stack as from the machinery. [29]</p> <p>18. That if the jury find that A. Charles and John K. Barclay were joint owners of the machinery, etc., upon the premises in question, which interfered with the full use of the premises, A. Charles had no right to require John K. Barclay to remove the same from the premises in question, and could not maintain any action against him for neglecting or refusing so to do.</p> <p>Ans. I refuse that point. The defendant testified that he bought all the machinery at an appraisement, and he alone claimed the right to keep it in the property of the plaintiffs. A. Charles Barclay never made any snch claim, and it appears that he never made any objection to the removal. The action is in tort, or for a wrong in obstructing or interfering with the plaintiffs in the use and enjoyment of their property, and the evidence does not show that A. Charles Barclay ever obstructed or interfered with the plaintiffs’ enjoyment of their property. [30]</p> <p>Verdict and judgment for plaintiffs, for $7,969.03.</p> <p>The asignments of error specified:' (1-12) The admission and rejection of evidence; (13-30) the answers to defendant’s points; and (31-37) the portions of the charge included within brackets and designated by numbers, respectively.</p> <p>—The circumstances amount to a license by the one owner of the land to himself and co-owner of the chattels to retain and use them in their position.</p> <p>A license which comprises or is connected with a grant is irrevocable. Wood v. Leadbitter, 13 Mees. & W. 844.</p> <p>So also is a license when acted on. Le Bevre v. Le Bevre, 4 Serg. & R. 241, 8 Am. Doc. 696; Rerick v. Kern, 14 Serg. & R. 267, 16 Am. Dec. 497; Swartz v. Swartz, 4 Pa. 353, 45 Am. Dec. 697; Ebner v. Stichter, 19 Pa. 19; Iiuff v. McCauley, 53 Pa. 206-8, 91 Am. Dec. 203. See also Davis v. Soucler, 10 Phila. 113; Gardner v. Weaver, 11 W. N. C. 544; M’Kellip v. M’llheunv, 4 Watts, 317, 28 Am. Dec. 711.</p> <p>Where the owner of two adjoining tenements so disposes of and arranges them that one of them is used for the benefit of the other, so that the use is visible and notorious, upon the sale of one of the tenements there is an implied grant or reservation, as the case may be, of the use. Kieffer v. Imhoff, 26 Pa. 438; Cannon v. Boyd, 73 Pa. 179; Seibert v. Levan, 8 Pa. 383, 49 Am. Dec. 524; Over deer v. Updegraff, 69 Pa. 110; McCarty v. Kitchenman, 47 Pa. 239, 86 Am. Dee. 538; Phillips v. Phillips, 48 Pa. 178, 86 Am. Dec. 577; Pennsylvania R. Co. v. Jones, 50 Pa. 417; Murphy v. Bedford, 35 Phila. Leg. Int. 262; Building Asso. v. Getty, 11 Phila. 305; Hart. v. Mentel, 26 Pittsb. L. J. 33; Swartz v. Swartz, 4 Pa. 353, 45 Am. Dec. 697; Rerick v. Kern, 14 Serg. & P. 267, 16 Am. Dee. 497; M’Kellip v. M’llhenny, 4 Watts, 317, 28 Am. Dec. 711.</p> <p>The house itself ought to be treated as partnership assets, and brought into the settlement of the firm affairs.</p> <p>This can readily be done, as the house has been reeonveyed to A. Charles Barclay. Lacy v. Hall, 37 Pa. 360; Meason v. Kaine, 63 Pa. 336.</p> <p>The cause of action accrued at once when the defendant refused to perform the duty; and the statute of limitations then began to run. Seely v. Alden, 61 Pa. 302, 100 Am. Dec. 642; Livezey v. Philadelphia, 64 Pa. 106, 3 Am. Pep. 578; Simpsou v. Keokuk, 34 Iowa, 568; Van Pelt v. Davenport, 42 Iowa, 308, 20 Am. Pep. 622; Emery v. Lowell, 109 Mass. 197; Eowle v. New Haven & N. P. Co. 112 Mass. 334, 17 Am. Pep. 106.</p> <p>Lastly, there is another aspect in which the wrong is not a continuous one, and this fact bars the plaintiffs’ rights altogether.</p> <p>The rule laid down in 3 Sutherland on Damages, pp. 403 and 809, is that where the wrongful act must necessarily continue to produce loss, independent of any subsequent wrongful act, all the damages, both before and after the suit, may be recovered therein. If active measures must be taken to remove the cause of damage, one suit which may be brought at once must include all the damage. Powers v. Council Bluffs, 45 Iowa, 652, 24 Am. Pep. 792.</p>

<p>The acts of May 13, 1887, and May 24, 1887 (P. L. 108, 194), repeal the act of April 3, 1872, entitled “An Act to Regulate the Sale of Intoxicating Liquors in the County of Allegheny.”</p>

<p>May Term, 1887, No. 12, M. D., before Gordon, Trunkey, Clark, Sterrett, and Green, JJ. Error to tbe Common Pleas of Dauphin County to review a judgment in favor of the plaintiffs in an action of ejectment.</p> <p>This action was brought by Ohristianna Anderson, Amanda Harley and her husband, Samuel Harley, Mary Thomas and her husband, Samuel Thomas, and George Anderson, heirs of John Anderson, against Jonas Brinser, for a lot of ground in Portsmouth, Dauphin county.</p> <p>The facts are sufficiently stated in the opinion.</p> <p>The specifications of error were as follows:</p> <p>1. The court erred in answer to defendant’s point, as follows:</p> <p>Point. The facts that Anderson took this lease, and that by that writing he rented this property from Hershey, show that he was not the owner of it, and estop him now from claiming to be the owner.</p> <p>Ans. This we cannot say, and we leave the question to you to determine, upon all the evidence of the case, whether or not the object of executing that lease was, as it appears from its face, in the absence of any other facts and circumstances in evidence, that Anderson was to become the lessor of ITershey for the lot which he otherwise had no title to. [1]</p> <p>2. The court erred in charging the jury as follows: “Brinser, this defendant, stands just where Hershey did; he has no greater right, nor less. Anderson was in possession of the property, or Anderson’s heirs were, after the death of Anderson; and that was notice to Brinser of the facts; and he could get no less nor no greater title than Hershey had. He stands precisely in Hershey’s shoes.”</p> <p>3. The court erred in charging the jury as follows: “If you find by satisfactory evidence that the parol contract was made for the purchase of lot number 258; if you find what the amount of the purchase was, what the bargain was; if you find, by testimony of the same kind, that in pursuance of that Anderson went into possession, built a house and paid for it — if you find these facts, then, unless this lease was a charge of that condition, or was an agreement on Anderson’s part that Hershey had become the legal owner, and that Anderson was only the lessor, you will find a verdict in favor of the plaintiffs.”</p> <p>4, 5. The action, of the court in entering judgment on the reserved points — which reserved points were as follows:</p> <p>“It is agreed by counsel on both sides that if the jury find a verdict in favor of the plaintiff, and the court should, on the motion for the entry of judgment for defendant non obstante veredicto, be of the opinion that the evidence of a parol purchase is not sufficient to take the case out of the statute of frauds, the judgment shall be entered for the defendant. It is further agreed that if, on the said motion, the court should be of the opinion that the existence of the lease is a legal bar to the recovery of the plaintiffs, then judgment to be entered for defendant non obstante veredicto ”</p> <p>The court erred in submitting the question to the jury whether the lease was an agreement to pay purchase money in the form of rent.</p> <p>In Leach v. Ansbacher, 55 Pa. 85, it was held when a party is in possession under a lease, the knowledge of the lease dispenses with the inquiry of how possession is held. That knowledge Jonas Brinser had, and of the very terms of the lease. See also Hood v. Pahnestock, 1 Pa. St. 470, 44 Am. Dec. 147.</p> <p>If it be that a lease, such as the one in evidence, can be found not to be a lease, but an agreement for the payment of purchase money, without any evidence and without anything to show that Brinser knew it to be any other than it purported to be, then indeed can it be said “that no man can safely buy land which is not in the actual possession of the vendor,” and the law as laid down in Wilson v. McCullough, 23 Pa. 440, 62 Am. Dee. 347, and Startwell v. Wilcox, 20 Pa. 123, is a delusion.</p> <p>To take a case out of the statute of frauds, it is indispensable that the parol contract should be definite in its terms and unequivocally established. Goucher v. Martin, 9 Watts, 106; Postlethwait v. Brease, 31 Pa. 474; McKowen v. McDonald, 43 Pa. 441, 82 Am. Dec. 576.</p> <p>The validity or invalidity of this lease depends on the proof of what took place when it was made, of which it should have been shown that Jonas Brinser had knowledge when he bought. Dinkle v. Marshall, 3 Binn. 589; Kostenbader v. Peters, 80 Pa. 441; United States v. Mertz, 2 Watts, 407.</p> <p>Where the parties have put their contract in writing, in the absence of fraud, accident, or mistake, parol evidence is inadmissible to vary it. Martin v. Berens, 67 Pa. 463; Be Eargood, 1.Pearson (Pa.) 399, and authorities cited.</p> <p>To submit a fact destitute of evidence as one that may, nevertheless, be found, is an encouragement to err which cannot be too closely observed or unsparingly corrected. Stouffer v. Latshaw, 2 Watts, 167, 27 Am. Dec. 297; Bradley v. Grosh, 8 Pa. 49.</p> <p>That the learned judge committed no error in refusing to enter judgment upon this verdict in favor of defendants, non obstante veredicto, is too plain to admit of any extended discussion. The testimony as to Anderson’s purchase, payment of purchase money, possession, and improvements, was remarkably clear considering the lapse of time which had intervened. Had it been much less clear, distinct, and positive, the court would have been bound to submit it to the jury. Bichar ds v. Elwell, 48 Pa. 367; Milliken v. Dravo, 67 Pa. 233.</p> <p>The lease, even if made by Anderson, was not inconsistent with the manner in which it was shown that Plershey held the title. Kunkle v. Wolfersberger, 6 Watts, 126.</p> <p>Even if it was fairly a question in the case the decision in Leach v. Ansbacher, 55 Pa. 85, cited for plaintiff in error, does not sustain his contention.</p> <p>The cases cited by Thompson, J"., for his remark in Leach v. Ansbacher, 55 Pa. 85, do not sustain his declaration that knowledge of a lease dispenses with all further inquiry. He cites Hood v. Fahnestock, 1 Pa. St. 474, 44 Am. Dee. 147, and also Sugden, Vendors, 339.</p> <p>In Hood v. Fahnestock, 1 Pa. St. 474, 44 Am. Dec. 147, it is said: “Every purchaser of land must be presumed to know whether the possession be vacant or not. The purchaser of an estate in the possession of tenants is chargeable with notice of the extent of their interests as tenants,' for having knowledge of the tenancy, he is bound to inform himself of the conditions of the lease.”</p> <p>The citation from Sugden on Vendors, 339, does not seem to be in point, if it is correctly quoted in 1 Pa. 475; and besides, it there appears that Sugden’s doctrine is not approved in Pennsylvania, as will appear from Billington v. Welsh, 5 Binn. 134, 6 Am. Dec. -406. See also Jaques v. Weeks, 7 Watts, 276; Daniels v. Davison, 16 Yes. Jr. 249; 17 Yes. Jr. 433; Allen v. Anthony, 1 Meriv. 282; Hottenstein v. Lerch, 104 Pa. 460; Jamison v. Dimock, 95 Pa. 55.</p>

January Term, 1887, No. 249½. All the Judges present. Error to the Common Pleas No. 2 of Philadelphia County to review a judgment in favor of the defendants on a demurrer in an action of assumpsit. This action was begun on March 17, 1882, by Maria E. Miskey, administratrix of Jacob A. Miskey, deceased, against Elizabeth E. Miskey, Edward IT. House, and Charles W. Otto, executors of Anthony Miskey, deceased.

October Term, 1887, No. 248, W. D., before Gordon, Cb. J., Paxson, Sterrett, and Williams, JJ. Error to the Common Pleas No. 2 of Allegheny County to review a judgment for the plaintiff on a case stated. The following was a case stated for the opinion of the court in the nature of a special verdict: That J. II.

<p>' To enable a party to enforce specific performance, the agreement must contain the exact terms of the contract and a description of the property.</p> <p>Where one agreed in* writing to sell a “lot on the right hand side of S. Street going towards the river, being twenty feet wide, and running back to Stewart street,” and it appeared that the vendor owned sixty feet on the right hand side of S. Street, the description was too indefinite to prevent the operation of the statute of frauds.</p> <p>Note. — Specific performance will not be granted where contracts are not certain and definite. Ruff’s Appeal, 117 Pa. 310, 11 Atl. 553; Daisz’s Appeal, 128 Pa. 572, 18 Atl. 414; Weaver v. Slienk, 154 Pa. 206, 26 Atl. 811; Reilly v. Gautsehi, 174 Pa. 80, 34 Atl. 576; Priend v. Lamb, 152 Pa. 529. 34 Am. St. Rep. 672, 25 Atl. 577.</p>

October Term, 1887, Nos. 262, 263, W. D., before Gordon, Ch. J., Paxson, Stkrbett, and AVilliams, JJ. Certiorari to tbe Common Pleas No. 1 of Allegheny County to review a judgment in favor of the commonwealth on an appeal from an alderman. George E. Splane was twice convicted, before an alderman, of selling soda water on Sunday. The alderman’s record of the first conviction was as follows: Charge: Worldly employment on Sunday.

October Term, 1881, Nos. 185, 215, W. D., before Gordon, Oh. J., Paxson, Stereett, and Williams, JJ. Appeals from a decree of the Common Pleas No. 1 of Allegheny County on a bill of interpleader. Bill in equity by Benjamin Push Bradford, to compel E. M. Yard, James B. Breese, and his wife, Josephine O. Breese (formerly Josephine 01 Yard), on the one part to interplead with Anna P. Aspinwall on the other part, to determine to whom should be paid a certain bond and warrant.

October Term, 1887, No. 95, W. D., before Gordon, Ob. J.,. Parson, Sterrett, Green, and Williams, JJ. Error to the Common Pleas No. 2 of Allegheny County to review a judgment-in favor of the plaintiff in an action on the ease for deceit. The following facts appeared at the trial before White, J.: In 1875 C. C. Craft sold and conveyed to B. E. Buff 3,954 acres of land in Baleigh county, West Virginia. Shortly after-wards Buff sold the land to J. 0. Williams.

<p>October Term, 1887, No. 234, W. D., before Gordon, Oh. J., Paxson, Sterrett, and Williams, JJ. Error to Common Pleas No. 2 of Allegheny County to review a judgment for the plaintiff in an action of trover and conversion.</p> <p>The facts as they appeared on the trial before Magee, J., are stated by him in his charge to the jury as follows:</p> <p>This is an action'of trover and conversion, brought by the plaintiff, to recover the value of two certificates for five shares each of the capital stock of the Metropolitan National Bank of Pittsburgh, of the value of $500 each. The declaration alleges that the plaintiff on the 4th day of December, 1885, at 9 o’clock a. m., was lawfully possessed of the same, and that they, the certificates of stock, came into possession of the said defendants by finding, and were wrongfully converted to their use.</p> <p>It is in evidence that the plaintiff was the owner of the two certificates of stock in controversy, and that by a writing bearing date the first of July, 1882, these certificates were placed in the hands of D. B. Mclntire, who was at the time the president of the Metropolitan National Bank of Pittsburgh, as collateral security for the payment of two certain notes made by the plaintiff, and held by the bank; one for the sum of $1,000, and the other for $500. The writing given by Mr. Mclntire to Mr. Blakeley provided that the certificates of stock were to be reassigned to the plaintiff upon the payment of the two notes. It is admitted that the $1,000 note was paid. The $500 note fell due — I presume after renewal — on about November 23, 1885, and was protested for nonpayment. Mr. Blakeley desired to have the $500 note renewed, but the bank, the holder thereof, refused to do SO'. On the first or second day after the protest the plaintiff, Blakeley, through his clerk and the indorser, made a tender to the book-keeper, and.. afterward to the cashier of the bank, of the amount due on the $500 note, and demanded a delivery of the note and a return of the certificates of stock given as collateral security for its payment. These two tenders were made at the bank. The cashier said he was willing to accept the money and give up the note, but that he did not know anything about the certificates of stock or the terms of the transfer. I do not know that he. said-positively that he did not know of the existence of the securities. The indorser, who made the tender, thereupon, produced the writing made by Mr. Mclntire, and upon which the certificates of stock had been transferred by Mr. Blakeley to Mr. Mclntire. The cashier still refused to give up certificates, saying,, if I remember the evidence correctly, that he did not have them.</p> <p>There is evidence, however, from the president and from the cashier, that the certificates of stock were in the vaults of the bank. The president says that he assigned the certificates in bank, and left them in the bank to be delivered to the proper person. If it be true that the note and the certificates were at the bank for the purpose of carrying out the trust upon which they Avere committed to the president, the tender thus made, and the refusal to deliver, Avould constitute a conversion of the property, and the bank and its officers and all participating in the wrong doing, would be chargeable with the conversion; if you believe from the evidence that there was a common intent to Avithhold the certificates unlawfully, and to deprive the person entitled to the possession of them of his dominion over them.</p> <p>It is in evidence that on the 4th of December, 1885, a few days after the tender and demand made at the bank, Mr. Blakeley went to the office of the defendants’ attorney and there made to the president of the bank a tender of the amount due on the $500 note, and demanded a return of his stock. This demand Avas refused, Mr. Mclntire, the trustee and president of the bank, saying that he had been advised by his counsel not to deliver the certificates. At. the time this tender and demand was. made the certificates in controversy were in his counsel’s office, where the transaction took place.</p> <p>If you believe that the tender and demand was refused by the trustee and president of the bank, for the purpose of depriving the owner of his property, and with a view to secure some advantage foreign to the terms of the Avriting, and not within its provisions, such refusal to deliver, in law would constitute a conversion of the property, with the immediate right of possession in the owner of the stock, Mr. Blakeley.</p> <p>In the afternoon of the day on which this tender and demand was made this action was commenced.</p> <p>The defendants say that they never have unlawfully refused to deliver up the certificates of stock, but that the plaintiff has failed to make a proper tender to the bank, in that the tender of the money was a conditional one, such as the bank was not required to comply with. If you find as a fact that the bank was not the holder of the certificates, or had no control over them, and could not deliver them, not from any fault of the bank, it would follow that the condition annexed to the tender would render the tender itself valueless, for the purpose of this suit, as far as the bank is concerned, and would not subject the bank to liability for the stock in this action. That is what the bank says; that it di d not have the certificates, did not have control of them, and could not deliver them; that is its grounds of defense; and I say to you that if it could not — if plaintiff was asking it to do a thing it could not do because it did not have control of the certificates, that would not make it in fault. If it did have control and could have delivered the stock, and declined to do it, it has converted, in law, the stock certificates, and would be answerable along with others, who had the control and exercised that control or dominion, and interfered with the rights of the owner.</p> <p>Mclntire says, when you come to him, that he is not in fault in not delivering the stock, because the $500 note is not paid. If the plaintiff has not paid the note or made a tender of payment which would be a legal tender, it would follow that the terms of the writing had not been complied with, and Mclntire would not be in fault. Dravo, as cashier, says that he has been in no default in the matter; that he was not the holder of either the note or the certificates, and that his refusal gave him no liability to this action. The only way to hold Dravo, and in fact all perhaps, at least not connected directly with the paper, would be the fact, if you so find, that he and Mclntire and the bank were by their joint control and action depriving the plaintiff of his property.</p> <p>The defendants submitted the following points:</p> <p>1. That under the law and evidence the plaintiff is not entitled to recover.</p> <p>Ans. Refused. [1]</p> <p>2. If the jury believe that the legal title to the stock in question was in I). R. Mclntire from July 1, 1882, until the present time, or the date of suit, the plaintiff is not entitled to recover in this form of action.</p> <p>Ans. Refused. [2]</p> <p>3. If the jury believe that the note of $500, secured in the hands of defendant, Mclntire, was unpaid at date of tender and demand to him for delivery of the stock certificates, the plaintiff is not entitled to recover.</p> <p>Ans. Refused. [3]</p> <p>4. Unless the jury believe from the evidence that the title to the stock certificates and stock, and the right of possession were both united in plaintiff at time of suit or demand, the verdict must be for defendants.</p> <p>Ans. Affirmed.</p> <p>(The defendants claimed that the court erred in not, after affirming this point, instructing the jury that a legal title meant a complete title, and that unless the stock certificate and the stock itself, of -which it was an evidence, was, at the time of suit, in the name of plaintiff, however much he might have had the right, of possession as against his voluntary trustee, he had no title such as is required to maintain an action of trover.) [4]</p> <p>o. A tender by the plaintiff to D. R. Mclntire, one of the defendants, or to the bank, accompanied as it was by a condition for the delivery of the stock certificate, is not a tendea-, unless the jury believe that at the time there had been an actual sale of the stock in question by the defendants.</p> <p>Ans. Refused. [5]</p> <p>6. If the jury believes that at the time of the tender there had been no conversion of the certificate by the defendants, then in the absence of proof of payment of the $500, the plaintiff is not entitled to recover.</p> <p>A ms. Refused. [6]</p> <p>At the trial the defendants offered to produce evidence as follows :</p> <p>Defendants’ counsel proposes to prove by the witness on the stand, the plaintiff in this case, that he is and was at the date of bringing this suit, indebted to the Metropolitan National Bank, a bank association created under the act of Congress, viz., in the sum of $125.29, being the amount of a judgment obtained by the, firm of Blakeley & Bigham, of which the plaintiff was a member, before Alderman Burke, of the city of Pittsburgh, which amount was not due from the bank to the plaintiff, but which suit was brought at the suggestion of plaintiff. He. requested that the bank in this matter would pay the judgment, asid, admitting it was wrongful after it had been paid by the bank, agreed and promised to pay the bank the full amount thereof, which amount is still unpaid— the offer being made for the purpose of showing that if it be found that the stock had passed into the control, and was owned by the bank, or that it held it under the terms of the trust paper made between Mclntire and Blakeley, that they had a right to hold the same and to refuse a transfer of the same until the existing claims of the bank against General Blakeley were paid; this authority being given by § 186 of the Revised Statutes, and also by the by-laws of the bank, adopted under that provision, and also declared on the face of the certificate.</p> <p>Objected to as incompetent and irrelevant. Offer overruled. Exception. [7]</p> <p>Verdict and judgment were for the plaintiff for $1,062.23.</p> <p>The assignments of error specified: (1-6) The action of the court on the points, as stated above; and (7) the rejection of the offer quoted.</p> <p>Any unauthorized or unwarranted interference with the property of another which, in any measure, restricts or interferes with the owner’s dominion or control over it, is a conversion of the property which renders the person guilty of such interference liable for the value of the property at the time of conversion. 6 Wait, Act. & Def. p. 175, and cases cited.</p> <p>Trover will not lie against one having a lien unless he has waived his lien or puts his refusal to deliver up the goods on some other grounds. Id. p. 144, and eases cited.</p> <p>It is a wrongful conversion if collateral pledged for one debt is held for another. Id. 165, and cases cited.</p> <p>Nor was the plaintiff below bound to actually pay the $500 when he was told (as he was) that this wrould not secure the release of his stock.</p> <p>The defendants had done that which was a conversion, and plaintiff’s right of action was complete. This does not involve any danger of sacrificing the pledgee’s rights.</p> <p>“Trover . . . is an equitable action, and if the party has a legal or equitable lien on the property it may be defalcated in the damages assessed by the jury.” Stoughton v. Eappalo, 3 Serg. & E. 563. See also Lehr v. Taylor, 90 Pa. 381.</p> <p>In Nailer v. Kelley, 69 Pa. 403, it was admitted that a tender would have made complete plaintiff’s right of action; but the court held, further, that when there had been a wrongful conversion of a pledge a tender of the debt is not necessary, but it may be recouped by the jury from the damages.</p>

<p>January Term, 1886, No. 218, E. D. Appeal by Nathaniel 'C. Harris et dl., plaintiffs, from a decree of the Common Pleas •of Bradford County in a suit in equity for an account, etc., in -which the Lehigh Valley Railroad Company et dl., were defendants, September Term, 1880, No. 3.</p> <p>The facts connected with the questions passed upon this appeal ¡sufficiently appear from the opinion of the court below, Morrow, J., which was as follows:</p> <p>A statement of some of the material and undisputed facts may ¡aid in understanding the case.</p> <p>On the 25th of October, 1865, and for several years prior, ■•the North Branch Canal Company maintained and operated a •canal known as the North Branch Canal, extending from Northampton street in the city of Wilkesbarre, along the North branch •o.f the Susquehanna river, to the state line near Athens, in this ■county. It was constructed by the state, and sold under the act ■of April 21, 1858, entitled “An Act for-the Sale of State Canals,” P. L. 414. It provided for the assessment of damages caused by the construction of the canal, and the payment of such •damages by the purchasers. The North Branch Canal Company was organized April 15, 1858. Its capital stock was fixed ■at. $1,750,000, and divided into 17,500 shares of $100 each. There were 590 bonds of $1,000 each, secured by a mortgage •upon the company’s property. The stock was all subscribed for May 24, 1858. Some of the subscribers not having paid their .assessments, 6,878 shares were forfeited under a resolution of ■the board of directors, of April 13, 1860, leaving unforfeited October 25, 1865, 10,622 shares. Prom the organization of the company until the organization of the Pennsylvania & New York Canal & Railroad Company, March 1, 1866, Col. Charles P. Welles, Jr., was president. He owned a large block of the shares and bonds.</p> <p>March 25, 1865, the following act was passed (Pa. Laws, 1865, p. 427) :</p> <p>“Sec. 1. That the North Branch Canal Company be and are hereby authorized to change their name, style, and title to the Pennsylvania & New York Canal & Railroad Company: Provided, That all rights of creditors and liens against the canal company shall continue and remain unimpaired; and that all the obligations and liabilities of the said North-Branch Canal •Company, shall attach to the said canal and railroad company .and be enforced against it, as fully as they could have been ■against the said North Branch Canal Company.</p> <p>“Sec. 2. That the said Pennsylvania & New York Canal & Railroad Company be and are hereby authorized to construct a .single or double track railroad along and upon or near the towing path or berme bank of their canal from any point in Luzerne -county to any points upon the New York state line in the county -of Bradford, with power to construct branches or lateral roads to any points in the counties of Bradford, Wyoming, or Luzerne ; and in the location, construction, and management of said railroad and branches, the said Pennsylvania & New York Canal -& Railroad Company shall have all the powers, and be subject to all the restrictions, of an act entitled ‘An Act Regulating Railroad Companies,’ approved the 19th day of February, a. d., 1849, and the several supplements thereto.</p> <p>• “Sec. 3. That it shall be lawful for the president and directors of said Pennsylvania & New York Canal & Railroad Company, upon a vote of the stockholders, at a meeting called for that purpose, to increase the capital stock of their company to such sum as may be necessary to construct and equip said railroad or any portions thereof, or they may, when directed by the stockholders, as above, issue from time to time the bonds of said company payable at any period not exceeding twenty years after the date thereof, with interest not exceeding 7 per cent per annum, payable semi-annually; and for securing the payment of said bonds, with the interest, to execute a mortgage or mortgages of and upon said railroad and its branches and appurtenances, or upon any portion thereof.”^</p> <p>On the 25th of October, 1865, the following contract was executed by Charles F. Welles, Jr., and Asa Packer:</p> <p>Memorandum of agreement, made the 25th day of October, 1865, between Charles F. Welles, Jr., of Athens, Pennsylvania, of the first part, and Asa Packer, of Mauch Chunk, Pennsylvania, of the second part, Witnesseth,</p> <p>That the said Charles- F. Welles, Jr., for the consideration hereinafter mentioned, hereby agrees to sell and convey to the said party of the second part, his heirs or assigns, the charter, entire capital stock, and franchises of the North Branch Canal Company with all lock houses, improvements, tools, and appurtenances belonging to or connected with said canal. The said Charles F. Welles, Jr., also agrees to pay all bonds, debts, and obligations of the said North Branch Canal Company of every description, including all unsettled claims for right of way, and also all claims for right of way that may arise and. have to be paid hereafter, by reason of the construction of a railroad along and upon the towing path or berme side of the said canal, as authorized by the act of assembly approved the 20th day of March, 1865, and the construction of a towing path upon the berme side of said canal.</p> <p>The said Asa Packer, party of the second part, hereby agrees to purchase the said capital stock and franchises, canal and improvements, of the said party of the first part and to pay him in full consideration therefor the sum of $1,050,000, as follows: $150,000 on or before the 15th day of December next; $150,000 on or before the 15th day of April, 1866; $150,000 on or before •the 15th day of August, 1866; $150,000 on or before the 15th day of December, 1866; $200,000 in bonds of the Camden & Amboy Railroad Company, at par (the interest that may have accrued upon said bonds to be adjusted at the time of transfer), and $250,000 in the capital stock of the Pennsylvania & New York Canal & Railroad Company at par, upon the organization of the said company. The possession of the said capital stock, ■canal, and appurtenances is to be delivered to the said party of the second part on or before the 15th day of December, next, when the bonds of' the Camden & Amboy Railroad Company are to be delivered, and the first payment of $150,000 made, and notes for the deferred payments given.</p> <p>After a number of payments had been made to Welles, Packer, on the 13th day of February, 1866, assigned the contract to the Lehigh Valley Railroad Company. After this Welles and the company treated it as a contract between themselves, — the •company repaid Packer all he had advanced to Welles, and made all the payments to Welles after the assignment. Indeed, from the pleadings and evidence, it may be inferred that the contract-was originally intended for the benefit of the Lehigh Valley Railroad Company.</p> <p>The Pennsylvania & New York Canal & Railroad Company was organized March 1, 1866. At that time Welles had received in cash $375,000, and nearly all of the Camden & Amboy bonds. By the 24th of October following, he had received altogether $682,641.81, including all of the Camden & Amboy bonds. This left $117,358.19 unpaid of the cash payments and due December 15, 1866. On March 1, 1866, AVelles had taken up. and delivered to the Lehigh Valley Railroad Company 9,920 shares of the North Branch Canal Stock, and during the next three or four years he took up and delivered all the other shares, excepting 215, which are still outstanding. So, on the first day of March, 1866, he had paid 504 bonds, leaving 86 unpaid. These he directed the Lehigh Valley Railroad to pay. They paid 84, and charged the amount to Welles. The two are unpaid and outstanding.</p> <p>On the organization of the company, there was nothing said or done towards tbe delivery to Welles of tbe $250,000 in its capital stock; by reason of whieh the plaintiffs claim the Lehigh valley company became liable to pay them $250,000 in money. But it appears that the parties regarded Welles as the owner of the stock, for, on the 12th of September, 1866, he agreed that the Lehigh. Valley Railroad Company should hold said stock as collateral security for the performance by him of his covenants with Packer. This is evidenced by the following agreement :</p> <p>“I hereby authorize the Lehigh Valley Railroad Company to deposit to my credit in the Farmers’ & Mechanics’ National Bank of Philadelphia the sum of $25,000 — which will be a payment on account of the contract between Asa Packer and myself dated October 25, 1865.</p> <p>“It is also understood and agreed that the stock in the Pennsylvania & New York Canal & Railroad Company to my credit, amounting to $250,000 — shall be held by the said Lehigh Valley Railroad Company, as collateral security for the fulfilment on my part of the several specifications in the contract aforesaid.”</p> <p>As further evidence that he treated it as stock, he gave the following order to V. E. and J. E. Piollet: “Athens, Bradford County, Pa., July 29, 1868, . . . the president and directors of the Lehigh Valley Railroad Company will please pay V. E. & J. E. Piollet $12,000 in the full paid shares of the Pennsylvania & New York Canal & Railroad Company’s capital stock for value received, and charge the same to account of C. F. Welles.”</p> <p>In pursuance of this order 240 shares of stock of $50 each were issued to Messrs. Piollet. So again, on the 6th day of August, 1810. after the certificates of stock had been issued to the Lehigh Valley company, Welles, to secure a large debt due Ellen J. Welles, assigned to her “the full number of shares in the capital stock of the Pennsylvania & New York Canal & Railroad Company, which of right belong, or may belong, to me under my arrangement or contract with Asa Packer, dated October 25,. 1865, now assigned and held by the Lehigh Valley Railroad' Company, certificates for which have not yet been delivered, not including, however, in this transfer 125 shares assigned to> V. E. Piollet, . . . with power to sell said stock and make transfers upon the books of the company.” Mrs. Welles’s interest in this stock, under this assignment, was afterwards transferred to James H. Webb, who transferred it to N. C. Harris.</p> <p>From these agreements and the conduct of Welles, the Lehigh, company claims that both Welles and the company treated the-agreement to pay $250,000 in stock as stock, the same as if the, certificates had been issued; and the company claims that the agreement of September 12, 1866, was a pledge of the stock for overpayments already made, and in payment for certain obligations for right of way, etc., which Welles was to pay, but was. unable to pay. The master, however, held that the company had the option to take the stock or pay in money, — elected to take the stock and pay the $250,000 (less $12,000 had by Messrs.. Piollet), and he accordingly charged the Lehigh Valley railroad with interest from May 29, 1876, holding that Welles had then substantially performed his contract, and holding also that the agreement of September 12, 1866, was not a pledge, for the reason that Welles had in fact no stock to pledge (the certificates, not having been issued), but “to mean no more than a stipulation by Welles, whereby he agreed to withhold the assertion of any claim to a performance of the covenants to pay this stock until his covenants should be performed.”</p> <p>Upon the organization of the Pennsylvania & New York Canal & Railroad Company, Welles was elected president and held that office until January 9, 1870. After that he was director until his death, which occurred October 9, 1872. His estate was insolvent. Asa Packer died May —, 1879. The company immediately upon its organization took possession of the canal, maintained and managed the same, collecting tolls, etc., until it was abandoned by authority of an act of assembly, approved April 2, 1872. Work was soon commenced to construct the railroad, and in the fall of 1869, trains were run its entire length.</p> <p>The Lehigh Valley Railroad Company paid for bonds and coupons from January 27, 1868, to October 27, 1869, $97,152.-69. Also from December 16, 1869, to October 25, 1870, $51,-848.20. Also from January 12, 1870, to October 23, 1873, sundry claims amounting to $2,012. Schedule F' contains a statement of claims for rights of way paid by the Lehigh Valley company, and allowed by the master, amounting to $82,314.41. These payments began in 1866, and ended during the year 1874. There are several large items in this schedule in dispute, because the railroad was built in some places some distance from the canal. The plaintiffs contend that Welles was not to pay for rights of way, unless the railroad was constructed “along and upon the towing path or berme side of said canal;” that the word “near,” mentioned in the act of March 25, 1865, was intentionally omitted from the contract of Welles and Packer. The defendant says the departures were with Welles’s consent, and in fact to his advantage. The master charged the plaintiffs with the rights of way where Welles was present, advised, and approved the divergence from the canal. The principal departures were across the Wysox flat (where the line was shortened 2-(4 miles), near Pittston (where the Pittston branch was purchased), and in Wilkesbarre.</p> <p>The plaintiffs were charged for the purchase of the Pittston branch $34,300.73, and in going across the Wysox flat, damages as follows: V. E. Piollet, $5,000; E. B. Coolbaugh, $1,300; H. W. Nobles, $1,400; M. H. laning, $3,000; H. J. Madill, $3,000; D. Williams, $450; L. B. Coolbaugh, $300; H. B. Morgan, $500. And in Wilkesbarre, the Wilkesbarre Coal & Iron Company, $500, and John Conner, $1,000.</p> <p>It was thought by the Pennsylvania & New York company that by the act of March 26, 1865, they were bought under the general railroad law of 1849, and their shares of stock should be $50 each. The North branch shares were taken up, and double the number of Pennsylvania & New York shares were issued in their place. This was about the middle of March, 1869. At that time Welles had delivered 10,382 shares of North branch stock. In their place were issued by the Pennsylvania & New York company 20,764 shares. Eour certificates of $5,000 shares each were issued to the Lehigh valley company March 20, 1869. These certificates were signed by Welles as president, and, it is claimed, included the 5,000 shares which the Lehigh valley company now holds under the agreement of September 12, 1866, as a pledge.</p> <p>The Pennsylvania & New York company issued bonds to the amount of $3,000,000 and secured them by mortgage upon the company’s property, and afterwards on April 8, 1869, an act was passed authorizing the company “to issue as many shares of preferred stock as may be necessary to finish the railroad.”</p> <p>Eour millions of dollars was the amount fixed upon as the amount necessary for that purpose, and it was divided into 40,000 shares of $100 each. The holders of the common stock were entitled to their pro roía share. Colonel Welles assisted in procuring the passage of the act, and presided at the meeting of September 30, 1869, when it was accepted. He had full knowledge of his right to subscribe for his proportionate share of the preferred stock, but declined because of his inability to pay for it. The master did not find this fact, but it is in evidence and uncontradicted. After this the preferred stock was distributed betw'cen the subscribers in proportion to their common stock.</p> <p>The certificates for the $250,000 capital stock mentioned in the contract of October 25, 1865, were issued to the Lehigh valley company March 20, 1869 — that is to say, all the Pennsylvania & New York common stock was included in the 20,764 shares mentioned above, of which 20,000 shares were issued to the Lehigh valley company. The plaintiffs claim that the company held the 5,000 shares, less the 240 delivered to Messrs. Piollet, as the trustee of Welles, — that the preferred stock issued to them was also held in trust, and that the plaintiffs are entitled to recover its value and all dividends received upon it. This claim the master thought of recent origin and refused it. No evidence was given of the value of either the preferred or common stock.</p> <p>James H. Webb, administrator of Welles, c. t. a., in 1875, and again the next year, went to Mauch Chunk and undertook to get a settlement of the matters involved in the Welles-P acker contract, but was unsuccessful, for the reason, he was told, there could be no settlement until the question of the forfeited stock of the North Branch Canal Company was adjudicated. After this he obtained an order of the orphans’ court and sold the interest of Welles in this contract to N. C. Harris for himself and others.</p> <p>Under the pleadings the plaintiffs asked for an account and a decree for the balance in money that may be found due them. The defendants claim that the $238,000 in stock was a pledge under the agreement of September 12, 1866, and that the pleadings should be considered as a bill to redeem.</p> <p>This is a sufficient statement of the facts, and they present the two loading questions,- — first, the liability of Welles for the payment of damages for-right of way, where the railroad diverged from the canal; and, second, whether the $250,000 of the capital stock was pledged to the Lehigh Valley Railroad Company, under the agreement of September 12, 1866.</p> <p>1. It is without doubt, that the divergence across the Wysox flats, near Pittston, and at Wilkesbarre, secured a shorter and better line of road, and a better roadbed and curves. The company could locate the road, within the limits prescribed by the act of assembly, as they saw fit, with or without the consent of Welles. The act authorized “the construction of the road along and upon, or near, the towing path or berme bank of their canal.” Welles by his contract agreed to pay for right of way “by reason of the construction of a railroad along and upon the towing path or berme bank of said canal as authorized by ac t of assembly.” The word “near” was left out of his contract, and we think, intentionally; for it is not reasonable to suppose that Welles, with his experience and knowledge as a railroad man, would undertake to pay for rights of way, without knowing where the road was to be located. It was enough for him to say: “I will pay for the right of way, if the road is constructed in a certain place.” But it was no less his duty, as president of the company, to co-operate with the directors and engineers to secure the shortest line and best location practicable without regard to the fact whether it was to his advantage or not. His presence on the ground, therefore, and insisting upon such location, would not change his liability under the contract. For it is not a disputed fact, but that every divergence from the canal, secured a better roadbed, shorter line, and easier curves, — advantages greatly in excess of the cost to the company for the rights of way. This construction of the contract relieves the plaintiffs from the sums mentioned above for the divergence at Wysox,— near Pittston and Wilkesbarre, — aggregating $50,750.73, — and to be deducted from the amount charged by the master against the plaintiffs in schedule “F.” The other items allowed in that schedule seem to be correct.</p> <p>This disposes substantially of the exceptions relating to charges by the Lehigh valley company for moneys paid for rights of way. I think a reasonable construction of the contract would warrant such charges, where the road was built “along and upon the towing path,” etc., and it was necessary to take narrow strips of land more than the towing path or berme bank afforded. Such damages were but incidental and unavoidable, and I think the master’s construction in that respect was correct. ' The plaintiffs’ exceptions not sustained as above are dismissed.</p> <p>2. I think the master was right in his construction of the contract of October 25, 1865, in this, that the covenants were mutual and dependent, and could not be enforced until they were performed, and therefore Welles not having performed his covenants March 1, 1866, when the Pennsylvania & New York Canal & Railroad Company was organized, was not entitled to the $250,000 in capital stock of that company, at par. There were 702 shares of the North Branch Canal Company outstanding, and 86 bonds. If this is a correct construction of the contract, then the Lehigh valley company did not become liable on that day to pay Welles $250,000, in money, nor did they become liable for several years thereafter, even if it be held that his contract was substantially performed with the 215 shares of stock, two bonds, and unsettled North Branch Canal claims still outstanding.</p> <p>But, aside from this, while his covenants were unperformed, September 12, 1866, Welles agreed that the stock “standing to his credit” should be held by the Lehigh valley company as collateral security for the performance of his contract. Again he called it “full paid shares” when he gave the order to Piollet. So, too, August 6, 1870, he assigned it to Ellen J. Welles, as “shares of capital stock, now assigned and held by the Lehigh valley company.” The contract was his substantial right to the stock; certificates are only evidences of it. But it is claimed, and was so held by the master, that because certificates had not been issued he had no stock to assign or pledge.</p> <p>In Collins’s Appeal, 15 W. N. C. 5, Green, J., said: “The existence of the subject of the pledge, at the time the contract of pledge is made, is not at all necessary. If it comes into existence afterward it is affected in equity at once by the lien stipulated for.”</p> <p>This is a stronger case, for not only the contract of September 12, 1866, was of force in equity, and when the certificates were issued March 20, 1869, it attached and vested the stock in the Lehigh valley company as a pledge, but sixteen months subsequently, when he assigned it to Mrs. Welles, he assigned it subject to his contract with the Lehigh company.</p> <p>It is clearly within the definition of a pledge. “The term ‘collateral security’ has in recent years come into general use, to designate a pledge of negotiable paper, corporate stocks, or other incorporeal personalty as distinguished from a pledge of. corporeal chattels.”- Jones, Pledges, 2; " '</p> <p>There is nothing in the evidence to show any conversion by the Lehigh valley company of this stock. It was issued in their name with the knowledge and consent of Welles. He still was the owner, and as such had notice that he was entitled to his pro rata share of the preferred stock. But this he refused, — the pledge still remained and the plaintiffs’ right is only to redeem. If they are unwilling to pay the amount advanced by the pledgees, then a decree may bo made, directing a sale of the stock, and after a payment of the amount due the Lehigh valley company, the balance to be paid to the plaintiffs. This view ■of the case negatives the idea that the agreement of September 12 ■was a postponement of the time of payment, and also that the Lehigh valley company elected to'keep the stock and pay its face value with interest. If it is claimed that the master found the fact of election, it is enough to say, it is but an inference from undisputed facts, and the court can correct the finding, if erroneous (Cake’s Appeal, 16 W. N. C. 489) ; and it is now found that the Lehigh valley company held the stock as a pledge, and are liable as pledgees, and not otherwise.</p> <p>The master was right in holding that there was no liability on the part of the company for the preferred stock.</p> <p>This view of the case disposes of the material questions raised by the exceptions to the master’s report, and all the exceptions that are not sustained by this opinion are dismissed.</p> <p>This, being held to be a bill to redeem, and the account being taken for the benefit of both parties, they should pay the costs equally.</p> <p>The .court thereupon stated an account and made a decree in accordance with the foregoing opinion; whereupon the plaintiffs appealed.</p>

<p>The failure of a complainant to sustain the positive averments of actual fraud contained in his hill will not, of itself, entitle the defendant to a dismissal of the bill, when there is proof of constructive fraud.</p> <p>Note. — Amendments to answers are discretionary with the 'court. Leach v. Ansbaeher, 55 Pa. 85. Such have been permitted after replication filed (Wilson v. Anderson, 13 Montg. Oo. L. Rep. 44) ; after the record has been remitted to the master for further proceedings (Consolidated Oil Well Packer Co. v. Jarecki Mfg. Co. 157 Pa. 342, 27 Atl. 543, 545). It has been refused when the application was made after the argument of exceptions to the master’s report. Everhart’s Appeal, 106 Pa. 349. And after a decision adverse to the defendant on the merits. Lexow v. Pennsylvania Diamond Drill Co. 5 Pa. Dist. R. 499.</p> <p>Where a trustee voluntarily becomes an indorser on a note of his cesiui que trust, it is contrary to the policy of the law to allow him to use the judgment obtained against the cesiui que trust on this note, as the basis 'of an adverse title in himself.</p> <p>The granting of amendments to an answer to a bill in equity is a matter within the discretion of the court. In this case, a refusal to permit defendant to amend his answer so as to interpose the defense of the statute of limitations after an argument upon the bill and answer, was held to be a proper exercise of this discretion.</p> <p>It was not error to charge a trustee with the rents, issues, and profits from the time the interest of the cestui que trust accrued without allowing for expenditures made during the life of a party having a prior life interest in the fund, although, as alleged by the trustee, the profits wore greatly increased by such expenditure.</p>

January Term, 1886, No. 176, E. D., before Gordon, Ob. J., Paxson, Sterrett, Green, Clark, and Williams, JJ. Appeal from a decree of tbe Common Pleas No. 1 of Pbiladelpbia County, dismissing a bill filed by William McCleary against Robert J. Savage et ux., praying for tbe cancelation of tbe satisfaction of a certain mortgage and for subrogation to tbe rights thereunder. The facts are sufficiently stated in tbe opinion of tbe court below.

<p>January Term, 1887, No. 372, E. D., before Gordon, Oh. J., Paxton, Sterrett, Green, Glare:, and Williams, JJ. Appeal of Charles G. Wetter et al., surviving trustees of Harmony Lodge, No. 52, A. T. M., from a decree of the Orphans’ Court of Philadelphia County in the matter of the estate of Samuel K. Brick, deceased.</p> <p>Samuel K. Brick died on May 16, 1885. By his last will he made certain provisions for his widow and children, which are fully set out in the opinion of the supreme court. By a codicil he gave to Charles G. Wetter, Conrad B. Day, and Christopher Tucker $2,000, to invest until it should amount to $4,000, and to be known as the “Samuel If. Brick Annuity Fund,” the income thereof to be applied for the relief of the indigent members and their widows, and orphans, of Harmony Lodge, No. 52, A. Y. M.</p> <p>At the audit, before Ashman, J., the said trustees claimed that the legacy to them was payable to them immediately. The court, however, held that the whole scheme of the will looked to the gift of the entire income to testator’s widow for life and the postponement until her death of all legacies; that there was nothing in the legacy to this charity nor in the other provisions of the codicil that manifested an intention to modify this scheme, and entered a decree accordingly.</p> <p>The trustees filed exceptions to this ruling, which the court, Penrose, J., dismissed. They then took this appeal, assigning for error this action of the court.</p> <p>The question in this ease is whether the pecuniary legacy to the appellant is presently payable or postponed until the death or remarriage of the testator’s widow.</p> <p>Legacies, if no time be limited for the payment thereof, shall in all cases be deemed to be due and payable at the expiration of one year from the death of the testator. Act of February 24,. 1834, Purd. 555, pi. 231.</p> <p>The act is mandatory.</p> <p>The legacy in question is given by the first codicil of the will.. There is no time limited for the payment thereof, and no intention expressed that its payment shall be postponed until the termination of the estate of the widow.</p>

January Term, 1888, No. 119, E. D., before Gordon, Ch. J., Paxson, Sterkett,-Green, Clark, and Williams, JJ. Error to the Oyer and Terminer of Philadelphia County to review a judgment on a verdict of guilty of murder in the first degree. Robert G. Hall was indicted for the murder of Sophia E. Smith, alias Lillian Rivers, to which he pleaded not guilty.

<p>Where receiver’s certificates are issued under an order of court which did not limit their payment to any particular fund, the fact that the petition was' for leave to issue the certificates in form payable out of a particular fund will not confine the holders of such certificates to that fund; they are not bound to look beyond the order of the court.</p> <p>One who loans money on receiver’s certificates, is not bound to look to the application of the money; he is entitled to rely upon the court to see that its officer makes a proper use of the money he is authorized to borrow.</p> <p>Note. — The receiver may be authorized to issue certificates when necessary to the operation of the business. Taylor v. Baltimore & L. R. Co. 7 York Legal Record, 174; Bucks County R. Co.’s Receivership, 22 Pa. Co. Ct. 170. Rutherford v. Pennsylvania Midland R. Co. 178 Pa. 38, 35 Atl. 926. If certificates having priority of lien are voluntarily surrendered for certificates having no priority, the holder will have no preference to debts contracted by the receiver for carrying on the necessary work. Lewis v. Linden Steel Co. 183 Pa. 248, 38 Atl. 606.</p>

January Term, 1887, No. 444, E. D., before Gordon, Oh. J., Paxson, Sterrett, Green, Clark, and Williams, JJ. Error to Common Pleas No. 4 of Philadelphia County to review a judgment for plaintiffs in an action begun by foreign attachment This was an action of assumpsit on a promissory note, commenced by summons case, February 20, 1885, which was -returned tarde venit.

January Term, 1887, No. 349, E. D., before Gordon, Oh. J., Parson, Sturrett, Green, Clark, and Williams, JJ. Error to the Common Pleas No. 2 of Philadelphia County to review a judgment-for plaintiff in an action upon a promissory note. The facts are substantially as follows: The bank brought suit, as indorsee against Beckhaus, who was an indorser of a note of which the following is a copy: $25,000. Philadelphia, July 1, 1884.

January Term, 1887, Nos. 298, 299, E. D., before Gordon, Oh., J., Paxson, Sterrett, Green, Clark, and Williams, JJ. Error to the Common Pleas No. 2 of Philadelphia County to review a judgment for plaintiff in an action by the city of Philadelphia to recover certain charges imposed by an ordinance for the erection of telegraph poles within the city limits and maintaining wires thereon.

<p>Where a husband in accordance with the terms of a deed of separation-,, executed under seal and as a compromise of family difficulties, conveyed and assigned to his wife a portion of his estate, and subsequently died insolvent, leaving debts contracted after the separation, his legal representatives have no right to claim that the property conveyed shall be reassigned to them in order to pay his debts and funeral expenses.</p> <p>Nome. — For transactions between husband and wife as constituting fraud upon creditors, see note to Tibbin v. Jones, 2 Sad. Rep. 526. As to post-nuptial agreements, see note to Reamey v. Bayley, 7 Sad. Rep. 239. ,</p>

January Term, 1887, No. 81, E. D., before Gordon, Ch. J., Parson, Sterrett, Green, Clark, and Williams, JJ. Error to the Common Pleas No. 4 of Philadelphia County to review a judgment for defendant in an action for damages for personal injuries. On August 16, 1883, Frank Rose, while crossing Market street to put a basket on the platform of a west bound street car, was struck by a car going east and sustained severe injuries, for which he brought suit.

July Term, 1887, No. 22, E. D., before Gordon, Ch. J., Paxson, Stbrrbtt, Green, Clark, and Williams, JJ. Error to the Common Pleas No. 8 of Philadelphia County to review a judgment for plaintiff in an action for damages for a malicious prosecution.

<p>A defendant charged with the crime of wilful murder cannot demand, as ■a matter of right, a statement in a bill of particulars, of the cause and manner of death; this is a matter resting in the sound discretion of the trial court and its refusal is not assignable for error.</p> <p>It is not error for a court to submit to a jury the question whether •or not a confession made by a prisoner was a voluntary one.</p> <p>Note. — A bill of particulars will be granted in a criminal case when the •court believes injustice will be done otherwise, but there is no right to demand it. Com. v. Bueeieri, 153 Pa. 535, 26 Atl. 228. So it will be refused when the defendant, with his counsel, was present at the preliminary hearing. Com. v. Eagan, 190 Pa. 10, 42 Atl. 374. But it will be granted, where necessary to protect from a second prosecution (Com. v. Rosenberg, 1 Pa. Co. Ct. 273) ; or to give more specific information to enable the applicant to prepare his defense (Goersen v. Com. 99 Pa. 398; ■Com. ex rel. Bergman v. Johnston, 19 Pa. Super. Ct. 241; Com. v. New Bethlehem, 15 Pa. Super. Ct. 158; Com. v. Norton, 16 Pa. Super. Ot. 423;.</p>

<p>A bill in equity will not lie against an attorney at law, to compel Mm to surrender a paper alleged to have been fraudulently obtained by Ms client, without joining the owner of the paper as a party defendant in the bill.</p> <p>The paper in this case held to be of little consequence and not a proper subject upon which to found a decree of a court af equity.</p> <p>-Note. — All parties in interest must be made ¿efendants in a proceeding in equity which will affect that interest (Philadelphia v. River Front R. Co. 133 Pa. 134, 19 Atl. 356; Huston v. Sellers, 12 Phila. 520; Alexander v. Moody, 7 Sad. Rep. 552; Maguire v. Heraty, 163 Pa. 381, 43 Am. St. Rep. 800, 30 Atl. 151; Donnelly v. Rafferty, 172 Pa. 587, 33 Atl. 754) ; or the representatives of such party (Markle’s Estate, 5 Pa. Dist. R. 47, 17 Pa. Co. Ct. 337). If a defendant is not joined, the reason therefor should appear. Bickley v. Paul, 11 Phila. 256.</p>

July Term, 1887, No. 188, E. D., before Gordon, Cli. J., Paxson, Sterrett, Green, Glare, aud Williams, JJ. Error to Common Pleas No. 2 of Philadelphia County to review a judgment on a verdict for the defendants in an action of replevin. The facts are as follows: From August 1, 1883, until August 1, 1884, Kost, the plaintiff, was a tenant of the Germania Theater in Philadelphia, under a written lease, at the yearly rental of $5,000, payable monthly in advance.

<p>In an action of ejectment, the plaintiff showed, that in 1877, by proceedings in partition, one of the purparts, consisting of the land in controversy, was adjudged to him, he giving the usual recognizance. The defendant alleged that in pursuance of a previous agreement the plaintiff, who was his brother, had taken the said purpart for him at a valuation of' $1,400; that the defendant had assigned to the plaintiff his interest in their father’s estate worth $1,600, to be used in adjusting the valuation money of the land thus taken for his benefit, and that the same was so applied; and that the defendant had continued to hold the land since the' partition, in his own right. Several witnesses testified to repeated declarations of the plaintiff made at the time of the partition as well as before and after, that he would take the land for the defendant, that he waa taking it for him, and that he had so taken it. It appeared that defendant had assigned his interest in their father’s estate to the plaintiff, who had used it as defendant alleged in equalizing the shares of the respective distributees. Defendant’s wife testified that he was a very dumb man and that the plaintiff had coaxed him to make the said assignment. There was • some evidence on the part of plaintiff that the assignment was for another purpose. Held, that there was evidence from which the jury might have found that the defendant’s allegations were true, and that it was error for the court to instruct the jury to find a verdict for the plaintiff.</p>

July Term, 1887, No. 57, E. D., before Paxson, Sterrett, Green, Clark, and Williams, JJ. Error to Common Pleas No. 3 of Philadelphia Cotmty to review a judgment in favor of plaintiff for want of a sufficient affidavit of defense in an action of covenant. This was an action by George O. Shakespeare against Nelson Morris, on a lease made by plaintiff to defendant of certain real estate situate in Reading, Pennsylvania.

July Term, 1887, No. 49, E. D., before Gordon, CL J., Paxson, Sterrett, Green, Clark, aud Williams, JJ. Error to the Common Pleas No. 1 of Philadelphia County to review a judgment on a verdict for the plaintiffs in an action on the case. This was an action brought by Jacob B. Landis and Metz J. Erisman, trading as Landis & Erisman, against the Western Union Telegraph Company, for losses occasioned by an error in the transmission of a telegram.

January Term, 1887, No. 412, E. D., before Gordon, Oh. J., Paxson, Sterrett, Green, Olark, and Williams, JJ. Error to Common Pleas No. 2 of Philadelphia Oounty to review a judgment entered in a verdict for the plaintiff in an action on the case. The plaintiff, Michael Hahn, brought this action against the Philadelphia, Wilmington, & Baltimore Railroad Company to recover damages for injuries alleged to have been occasioned by the negligence of the defendants.

January Term, 1888, No. 54, E. D., before Gordon, Oh. J., ■Pakson, Sterrett, Green, and.Clark, JJ. Error to the Common Pleas No. 1 of Philadelphia County to review a judgment of 'nonsuit in favor of the defendant in an action on the case. This action was brought by Annie C. Comly against the Pennsylvania Railroad Company, to recover damages for the death of her husband, Washington A. Comly, caused by the alleged negligence of the company defendant.

July Term, 1887, No. 182, E. D., before Gordon, Ck. J., P’axson, Sterrett, Green, Clark,1' and Williams, JJ. Er-Tor to Commou Pleas No. 8 of Philadelphia County to review a judgment of nonsuit iu an action on the case. This was an action brought by Julius Pick agaiust Charles PE., William M., Samuel II., Jacob 0., Theodore, aud Andrew 'Cramp, trading as William Cramp & Sons, to recover damages ■for injuries occasioned by the defendants’ negligence.

July Term, 1887, No. 181, E. D., before Gordon,. Oh. J., Paxson, Sterrett, Green, Clark, and Williams, JJ. Error to Common Pleas No. 2 of Philadelphia County to review a judgment entered on a verdict for the plaintiff in an action on the case.

<p>When a debtor assigns bona fide all his interest in a partnership to a 'trustee for certain of his creditors, and on the same day confesses a judgment to the same trustee in trust for the same creditors and debts, the trustee cannot enter up judgment, levy on and sell, by the sheriff, the debtor’s interest in the said partnership, receive the proceeds of the sale, and subsequently, on a settlement of the firm’s accounts, claim the balance due the debtor under the assignment as against the purchaser at the said sheriff’s sale.</p> <p>. Such estoppel of the trustee is not affected by his having given notice at the time of the sale that the debtor had assigned his interest prior to the execution and that no title would pass by the sale.</p> <p>Note. — For the estoppel of one who has secured the decree to which he objects, see note to Wolfe v. Gordon, 4 Sad. Rep. 307.</p>

January Term, 1888, No. 19, E. D., before Gordon, Cb. J., Paxson, Sterrett, Green, Clark, and Williams, JJ. Error to Common Pleas No. 2 of Philadelphia County to review a judgment of nonsuit in an action on the case. This was an action brought by Amelia W. Springer against the city of Philadelphia, to recover damages for injuries occasioned by the plaintiff’s slipping and falling on an icy pavement within the said city.

July Term, 1887, No. 171, W. D., before Gordon, Oh. J., Paxson, Sterrett, Green, Clark, and Williams, JJ. Error to the Common Pleas No. 4 of Philadelphia County to review a judgment in favor of the defendant on a case stated. The plaintiff, Joseph M. Reeves, and the defendant, John Joseph Alter, agreed to submit to the court the following facts, as a case stated for its opinion and decision: First.

January Term, 188Y, Nos. 305, 306, 308, E. D., before Paxson, Sterrett, Green, Clark, and Williams, JJ. Error to the Common Pleas of Delaware County to review a judgment in favor of the plaintiff in an action of assumpsit. Four suits were brought by James Mulligan, against John L. Entwisle and Joseph Entwisle, trading as John L. Entwisle & Son, on four promissory notes made and signed by J ohn L. Entwisle & Son, in favor of the plaintiff.

January Term, 1887, No. 307, E. D., before Paxson, Sterrett, Green, Clark, and Williams, JJ. Error to the Com-' mon Pleas of Delaware County to review a judgment in favor of the plaintiffs in an action of assumpsit. This action was brought by C. Davis Carey, Theodore C. Carey, and William IT.

January Term, 1888, No. 130, E. D., before Gordon, Oh. J.^ Paxson, Sterrett, Green, Clark, and Williams, JJ., .Error to the Common Pleas No. 3 of Philadelphia County to review a judgment in favor of the plaintiff in a feigned issue on an interpleader. This was a feigned issue between J. Bush Bitter, assignee of George W. Jacoby and John F. Jacoby, trading as G. W. Jacoby & Son, and the Farmers’ Bank of Harrisburg, to determine the ownership of certain personal property.

July Term, 1887, No. 86, E. D., before -Paxson, Green, Clark, and Williams, JJ. Appeal from a decree of the Common Pleas of Chester County dismissing exceptions to a master’s report in equity. Bill in equity wherein Larissa D. Matlack was complainant and Albert Kenney, defendant.

<p>July Term, 1887, No. 163, E. D., before Gordon, Ob. J., Parson, Green, Clark, and Williams, JJ. Error .to Common Pleas No. 3 of Philadelphia County to review a judgment entered on a verdict for the plaintiff in an action on the case*</p> <p>This was an action brought by George Page against the Pennsylvania Railroad Company, to recover the value of a barn and its contents, alleged to have been burned by a spark from a locomotive, belqnging to the defendant railroad.</p> <p>The facts of the case were as follows:</p> <p>The declaration alleged that defendant did not manage and control nor run the said trains of cars with care and vigilance, and did not provide the said locomotives with any proper or adequate spark appliances, so that the said bam of plaintiff’s was fired by sparks of fire from one of the said locomotives by reason of the said negligence of the defendant.</p> <p>The- evidence proved that the plaintiff’s bam was burned between 2:30 and 3 o’clock in the afternoon of October 1Y, 1886; that very shortly prior to the fire several trains had passed on the defendant’s track, the last about ten or fifteen minutes prior to the fire; that the engines of these trains had emitted a great deal of smoke; that this smoke was carried directly to the house, and that the fire originated in the roof of the barn on the side toward the railroad.</p> <p>It was further alleged that the engines were not equipped with a proper spark arrester.</p> <p>One witness testified that he saw, in this smoke, cinders or sparks about the size of a grain of shot or a pea. Another witness said in answer to the question whether he saw any sparks: “No, sir; you could not see any in the daytime. You would feel them fall down on you as they go past you; if you were close to them you could not see them, of course, in the daytime.”</p> <p>There was, however, uncontroverted evidence that the spark arrester used by these engines is used by a majority of all the locomotive engines in this country. The inventor testified that it was impossible that sparks that would ignite anything could pass through these spark arresters. The inspectors of the railroad company testified that the spark arresters and ash pans were in good condition.</p> <p>.During the progress of the trial the plaintiff was interrogated by the defendant’s counsel as follows:</p> <p>Q. Did you have any insurance on the bam ?</p> <p>A. Yes, sir.</p> <p>Q. Did you get the insurance ?</p> <p>(Objected to by plaintiff. Objection sustained. Exception.) [1]</p> <p>W. E. Lockwood, a witness for the plaintiff, testified as follows:</p> <p>Q. What am I to understand you to say ? Because I am in some doubt about the last part of your sentence. Wbat do I understand you to say is emitted — what are the things that are. emitted when this-smoke comes through the smoke stack?</p> <p>(Objected to.. Objection overruled. Exception.)</p> <p>A. Both sparks and smoke.</p> <p>Q. What is the appearance ?</p> <p>A. The smoke is a powder, which settles upon foliage and upon water where it is smooth, which you can scrape off; and sparks you couldn’t begin to carry that distance. They are a different thing, and fall of their own gravity.</p> <p>Q. But the whole thing comes out, as I understand you, in this volume of smoke ?</p> <p>A. Yes, sir; from the smoke stack of the locomotive.</p> <p>Q. What is the effect of the wind on that volume of which comes out ? , smoke</p> <p>(Objected to. Objection overruled. Exception.)</p> <p>A. It carries it long distances.</p> <p>Q. Do you include sparks when you say that ?</p> <p>A. I include them for a considerable distance. [2]</p> <p>The same witness testified as follows:</p> <p>Q. Can you state the distance which a wind to your edge has been known to carry sparks ? knowl-</p> <p>(Objected to, except as to the wind on this day and from these particular engines at this particular place, tion overruled. Exception.) sparks Objec-</p> <p>A. Sparks at least 300 feet, to my knowledge, and the smoke about 650, where it settled and made a deposit. [3]</p> <p>W. B. Levan, a witness for the plaintiff, testified as follows:</p> <p>Q. What is the effect of the wind upon such a substance or conglomeration ?</p> <p>(Objected to. Objection overruled. Exception.)</p> <p>A. They would be carried a greater or less distance, according to the character and velocity of the wind at the time and the condition of the atmosphere. In certain atmospheres, a light wind would carry them a long distance, and under certain other •conditions only a short distance, even with the same velocity of air. Buoyancy depends a good deal upon the condition of the .atmosphere.</p> <p>Q. I suppose that the distance carried is dependent largely .also upon the weight of the substance itself %</p> <p>xí. Yes; and on the velocity of the wind also. As I said ber fore, under certain conditions of the atmosphere, a very light wind would waft it off a long distance, say 1,000 yards, and under certain circumstances the same wind would only send it 300 yards under other conditions. The atmosphere controls that. [4]</p> <p>The same witness testified as follows:</p> <p>Q. How far have you known sparks to be carried under those ■conditions ?</p> <p>(Objected to. Objection overruled. Exception.)</p> <p>A. I have seen sparks from bituminous coal go at least 1,000 yards.</p> <p>Q. Do you mean live sparks ?</p> <p>A. Yes, sir; in the night time you could see them. In the •daytime they would not be visible to the eye. [5]</p> <p>Counsel for plaintiff offered to show by the same witness, upon reading to him the evidence, heretofore given in the cause, ■of the running of the engine on this occasion, that it was improperly run. Neither of these witnesses had charge of the locomotive, and both were three quarters of a mile away.</p> <p>(Objected to. Objection overruled. Exception.)</p> <p>Q. I read to you the testimony of Mr. James Magill, heretofore given in this cause, p. 56; and also read to you the testimony of Thomas Dorsey, p. 62 (reading same). State whether •or not, assuming that testimony to be true, you are able to say 'that the engines there described were properly run.</p> <p>(Objected to. Objection overruled. Exception.)</p> <p>A. There is no doubt, they were properly run. The question •of sparks and cinders is not a question of running. It is a question of firing, and one of arrangements for arresting the sparks .and arrangements for consuming of the particles by combustion.</p> <p>A. Are you able to say whether or not the engines there de- . scribed; assuming the testimony which I have read to you to be ■true, were properly fired and managed at that time ?</p> <p>(Objected to unless the witness has knowledge of the engine and its construction. Objection overruled. • Exception.)</p> <p>A. In my opinion I think there could be a great improvement in the management of all their locomotives.</p> <p>(Objected to.)</p> <p>By the Court: You must confine yourself to the testimony which you have heard and to the time and circumstance. You may answer - generally, and then give any explanation which you yourself or either of the counsel may desire.</p> <p>A. There is no doubt the train was run properly as they are ordinarily run, but-</p> <p>(Objected to.)</p> <p>By the Court: It must be an explanation of the answer if he makes an explanation.</p> <p>Q. Explain your answer.</p> <p>By defendant’s counsel: I object to anything further.</p> <p>Q. You were about to explain, were you not ?</p> <p>A. Yes, sir.</p> <p>By the Court: The witness is allowed to explain his answer if he desires to do so.</p> <p>(Exception.)</p> <p>A. I would like to say in explanation of my answer that the Pennsylvania Bailroad is very liberal, and allows outside people like myself to have all the information of what they are doing. As regards the general management of a railroad, they stand second to none in this country; but there are certain appliances that they refuse to adopt which would modify very materially the amount of smoke that is emitted from their locomotives, and which can be had for the paying for it; but, as they are patented, they refuse to pay a bonus to use that apparatus until the time has expired, when they take and use it, and their present locomotives are now using apparatus that were patented for years, and they never used it; but when the patents ran out they adopted them, and they are in general use on their road.</p> <p>By defendant’s counsel: I move that all that statement be stricken out. It is not an answer to anything, nor is it an explanation of anything which has been said.</p> <p>By the Court: I think it qualifies his answer very much.</p> <p>By defendant’s counsel: Then I ask for an exception.</p> <p>(Exception sealed.)</p> <p>A. Locomotives can be run without emitting sparks or smoke if properly constructed. All sparks that are emitted can be returned to the fire and burned up, and are done so and have been done so. The refuse from a locomotive which they have thrown away has run a fifty-horse engine to my knowledge, for years.</p> <p>Verdict and judgment for the plaintiff, for $3,955.60.</p> <p>The assignments of error specified: (1 — 6) The admission and rejection of the evidence above set forth.</p> <p>The seventh assignment of error was as follows:</p> <p>“The learned court erred in not peremptorily ordering a verdict for the railroad company on the weight of the evidence, as it showed that the appliances used by the railroad company were the best known, and that they were in use upon nearly 75 per cent of all locomotives in the United States, and that all railroads were adopting the same appliance and altering old locomotives in conformity with it.”</p> <p>The insurers can sue the railroad company; and therefore the questions as to the payment of the insurance were admissible. Kennebec Ice & Goal Go. v. Wilmington & N. R. Go. 13 W. N. C. 162, 14 W. N. C. 554.</p> <p>The assignments of error (2-5) were to the admission of evidence clearly irrelevant. The questions should have been limited to the conditions of this case.</p> <p>What is it to the case, if the witnesses saw sparks thrown a mile, unless they were thrown under circumstances like those at the time of this occurrence ?</p> <p>The investigation in this case was limited to the condition of the spark arresters of the locomotives alleged to be in fault, and to these alone. If these were proper ones and in good order, the railroad company is not liable. Philadelphia & K. R. Oo. v. Yerger, 73 Pa. 121; Erie R. Co. v. Decker, 78 Pa. 293; Jennings v. Pennsylvania R. Co. 93 Pa. 337; Philadelphia & R. R. Co. v. Schultz, 93 Pa. 341; and Reading & C. R. Co. v. Latshaw, 93 Pa. 449; Albert v. Northern C. R. Co. 98 Pa. 316. .</p> <p>The court certainly erred in allowing the witness Levan to ramble off into a tirade against the railroad company as to its not adopting patented appliances. Under the authorities cited supra the railroad company was not guilty of negligence.</p> <p>The questions as to plaintiff’s insurance were irrelevant The case cited by the plaintiff in error is not in point.</p> <p>The conclusion is necessarily deduced from the evidence that combustion had been carried, from one of the engines passing, to the bam in the smoke that was carried directly over it. It was therefore proper to show that sparks could be carried in smoke as far as from the train to the barn. So was ' any evidence that the company did not use the best spark arresters.</p> <p>It is necessary to infer from all the evidence that the spark arrester was not in good condition. The railroad company was negligent. Lehigh Valley It. Co. v. MeKeen, 90 Pa. 122, 35 Am. Pep. 644; Philadelphia & P. P. Co. v. Schultz, 93 Pa. 341.</p>

July Term, 1887, No. 54, E. D., before Paxson, Trunkey, Green, Clark, and Williams, JJ. Error to the Common Pleas of Chester County to review a judgment for the plaintiff in an action for malicious prosecution. The facte were substantially as follows: In 1885 Z. Acker leased his farm to William Gundy, who was to occupy a tenant house on the place and to farm the same upon shares.

<p>January Term, 1887, No. 383, E. D., before Gordon, Oh. J., Paxson, Sterrett, Green, Clark, and Williams, JJ. Appeal from a decree of tbe Orphans’ Court of Philadelphia County refusing an issue to determine the validity of a will.</p> <p>The facts as they appeared from the record were as follows:</p> <p>George E. Ulmer died February 14, 1886. February 18, Jennie E. Hays, wife of Henry C. Hays, produced before the register of wills a paper purporting to be the last will and testament of the decedent. By this paper the whole estate of decedent was left to Jennie E. Hays, and she was named as sole executrix. The paper was admitted to probate and letters testamentary were granted to Mrs. Hays. February 23, 1886, George B. Ulmer and John B. Moyer presented their petition to the orphans’ court setting forth that they were relatives of decedent; that decedent during the last five or six years of his life was of unsound mind, memory, and understanding, and utterly unfit to make a will; that, further, in the making of his so-called last will he had been unduly influenced by the said Jennie E. Hays and her husband, Henry 0. Hays; and that the petitioners were acting upon behalf of themselves and such other relatives of the decedent as had an interest in his estate.</p> <p>The petition further set out that the said John B. Moyer, one of the petitioners, held in his possession a will made by decedent in 1873, at a time when there was no question as to his sanity, in which will he bequeathed the bulk of his estate to several of his nearest relatives — bequeathing several hundred dollars to charities, and $500 to the said Jennie Hays, under her then maiden name of Eliza Jane Aldridge, of which said will John B. Moyer and Albert Ulmer were named as executors.</p> <p>Said petition prayed for the issuing of a citation upon the parties interested to «show cause why an appeal should not be allowed from the decision of the register of wills granting letters testamentary upon the estate of decedent to the said Jennie E. Hays, and for an issue devisavit vel non.</p> <p>Upon March 5, 1886, Jennie E. Hays and Henry C. Hays, her husband, filed their answer to said petition, denying the allegation in the petition, that decedent was of unsound mind, and alleged, on the contrary, that decedent was, during said period, of full testamentary capacity, and of sound mind and memory. The answer also denied the use of undue influence upon decedent, and charged tliat the said Jennie E. Hays was in the position of an adopted daughter of decedent, although never formally adopted as such “through the court.”</p> <p>A general replication was filed and the court below appointed an examiner to take testimony in the cause. A number of witnesses were called by both the petitioner and the proponent, and on the testimony being reported by the examiner, the court refused an issue and dismissed the appeal from the register.</p> <p>The assignments of error specified the above action of the court.</p> <p>Any direct testimony as to testator’s mental incapacity is sufficient to send the case to a jury. Where testimony as to testamentary capacity is contradictory and gives rise to suspicion of perjury, such an issue of fact is presented as should be determined by a jury. Wilson’s Appeal, 11 W. N. 0. 335, and Gibson’s Estate, 11 W. N. C. 355.</p> <p>The party requesting an issue must set forth the facts, that the court may be able to determine their materiality. If the facts are material, the court is bound to award an issue when requested; otherwise not. Oozzens’s Will, 61 Pa. 196.</p> <p>Upon the trial of an issue devisewit vel non the judge should not withdraw the case from the jury, for the mere reason that he, if sitting as a juror, could not find, from the evidence, a verdict against the will. The ease should be left to them, unless the testimony is such that he would feel obliged to set aside a verdict for the contestants. Herster v. Herster, 116 Pa. 612, 11 AtL 410.</p> <p>The proponent of a contested will must produce and examine all the attesting witnesses, if in his power to do so. Thornton v. Thornton, 39 Yt. 122, 6 Am. L. Peg. N. S. 341.</p> <p>Eddey’s Appeal, 109 Pa. 406, 1 At!. 425, a case very similar to this, uses the following, language: “Where the overwhelming weight of the testimony as to facts shows testamentary capacity on the part of the testator, the testimony of disappointed, or insufficiently informed,, witnesses, to the effect that in their opinion the testator did not have testamentary capacity, has but little value in determining the question whether an issue devisavit vel non shall or shall not be granted.”</p> <p>Wilson v. Mitchell, 101 Pa. 495, is decisive of this case.</p>

January Term, 1888, No. 41, E. D., before Gordon, Ch. J., Paxson, Sterrett, Green, Clark, aud Williams, JJ. Error to the Common Pleas of Schuylkill County to review a judgment on a verdict for the plaintiff in an action of trespass on the case.

January Term, 1888, No. 256, E. D., before Gordon, Ch. J., Pans on, Stehrett, Green, Glare, and Williams, JJ. Error to tbe Common Pleas of Lebanon County to review a judgment in favor of tbe plaintiff in an action of ejectment, August term, 1886, No. 216.

January Term, 1887, No. 124, E. D., before Gordon, Oh. J., Paxson, Sterrett, Green, and Williams, JJ. Appeal from a decree of the Common Pleas of Montgomery County discharging a rule to open a judgment. April 28, 1877, judgment was entered by J. Morton Albertson against Ninian Irwin on a single bill dated April 12, 1877. December 8, 1888, N. Adeline Irwin, widow and executrix of Ninian Irwin, presented her petition for a rule to open the judgment.

<p>Where the act of incorporation of a water company provided that the “real estate (to which water is supplied) shall be bound and liable for the use of same,” it was held that a preliminary injunction, granted at the instance of the present owner of certain premises to restrain the company from stopping the supply of water thereto, in accordance with a by-law of the corporation, for arrearages due by the previous owner, was properly dissolved.</p>

July Term, 1886, No. 22, E. D., before Gordon, Ch. J., Paxson, Sterrett, Clark, and Williams, JJ. Appeal of George Einer from a decree of the Orphans’ Court of Schuylkill County overruling the exceptions and confirming the report of' the auditor appointed to audit and distribute the proceeds of the sale of the real estate of Jacob B. Miller, deceased, in the hands of his executor.

January Term, 1888, No. 279, E. D., before Gordon, Oh. J., Paxson, Green, Clark, and Williams, JJ. Error to the Common Pleas of Lackawanna County to review a judgment in favor of the plaintiff on a scire facias sur mechanics’ lien. This was a scire facias sur mechanics’ lien, by Oonrad Schroeder against Anna M. Galland, owner, and B. Galland, her husband, and Charles Olmstead, contractor.

January Term, 1886, No. 429, E. D., before Gordon, Ob. J., Paxson, Sterrett, Green, and Williams, JJ. Error to the Common Pleas of Montgomery County to review a judgment for tbe plaintiff, a mutual insurance company, in an action to recover an assessment for losses while defendant was a member of tbe plaintiff company. Tbe facts of the ease are fully set out in tbe charge of the court below. .

<p>January Term, 1887, No. 39. E. D., before Gordon, Ch. J., Paxson, Sterrett, Green, Or.ark, and Williams, JJ. Error to the Common Pleas of Schuylkill County to review a judgment in favor of the defendants in an action of ejectment.</p> <p>This action was brought by Levi Erey against Gottleib Gessley, Nathaniel Shaub, and William Young, to recover possession of a lot of ground and house thereon erected.</p> <p>At the trial before Green, J., the following facts appeared:</p> <p>The lot in dispute was a leasehold property which by various conveyances had vested in Elias Erey, son of Levi Erey, the plaintiff. In 1880 Elias Erey was indebted to his father for $346, for money loaned. He was also indebted to the defendant in the sum of $384. October 14, 1880, Elias Frey executed a bill of sale for the leasehold property, absolute on its face and purporting to convey all his right, title, and interest in the property to Levi Erey. At the time the bill of sale was executed a parol agreement was made that when Levi Erey should have paid himself out of the rents the full amount of his debt, then the property should revert to Elias. The evidence showed that the financial embarrassment of Elias was known to Levi when the bill of sale was made. The same day a lease of the premises was made by Levi to Elias. October 5, 1880, the defendants obtained a judgment against Elias Frey. A fi. fa. was issued on the judgment and the pi’emises were sold to Gottleib Gessley for $300. The plaintiff notified the sheriff of his claim and warned bidders at the sale.</p> <p>The plaintiff asked the court to charge as follows:</p> <p>1. That the note dated .January 1, 1877, given by Elias Fi’ey to Levi Erey, with the interest thereon, and the $50 loaned, which made the $316, the consideration in the bill of sale, merged in the higher security of the bill of sale, and on and after the 11th of October, 1880, were extinguished, and the debt which was before represented by the note, etc., was thereafter represented by the bill of sale, and the bill of sale is now the only evidence which Levi Erey has to show, what Elias Erey was indebted to him on the 11th of October, 1880.</p> <p>Ans. Refused. 1</p> <p>2. That a leasehold estate is not within the recording acts, and it is not necessary to record the same, to make conveyances good against subsequent purchasers under execution process; and the grantor may remain in possession of said leasehold premises after his sale of his interest in said leasehold premises; and such possession of itself is no evidence of fraud between him and his grantee.</p> <p>Ans. Refused. 2</p> <p>3. That all conveyances of real estate or of leasehold estates, whatever the form of such conveyances may be, accompanied by a right of redemption, by the payment of the consideration for such conveyance by the grantor, are in fact mortgages. And such conveyances are none the less mortgages because they purport to convey absolutely the whole title and interest of the grantor without any condition inserted therein, allowing the grantor to redeem upon paying the consideration of said conveyances, and the rule is “Once a mortgage, always a mortgage.”</p> <p>Ans. Refused. 3</p> <p>1. That on.the 11th of October, 1880, when this bill of sale was made, there was no law requiring defeasances to be in writing, and if the plaintiff received the bill of sale as a security for his debt of $346, and was to hold the house, until the rents from the same paid tire debt, and then the house in controversy was to revert to Elias Erey the grantor, the bill of sale with the agreement not reduced to writing, was but one and the same thing, and was simply a mortgage; and the fact that .the bill of sale was on its face an absolute conveyance of the house in controversy, can not be used separate from the accompanying agreement either to establish a sale, or other indefeasible right by Elias Erey or the defendants, who can claim only through Elias Erey.</p> <p>Ans. Eefused. 4</p> <p>5. That as the house in question was built upon leased ground, it was what is called a chattel real. That the same is not subject like real estate to the liens of judgments; and hence the defendants, Gessley et (A., had no lien upon this house in question on the 14th of October, 1880, by virtue of the verdict of the 5th of October, 1880; and the said Elias Erey, could on the 14th of October, 1880, convey said house and leasehold or mortgage the same to pay, or secure his just debts, to his father or any other creditor. In Pennsylvania a debtor has the right to prefer one creditor, in preference to others, either by a sale or mortgage of his chattels real, and such preferences are sanctioned by law, and it is no objection to such conveyances, that the creditor knew that the debtor was in debt to other people.</p> <p>Ans. Eefused. 5</p> <p>6. That if the jury believe that Elias Erey on the 14th of October, 1880, was in debt to Levi Erey $346 (and there is no evidence to contradict Levi Erey, Elias Erey, and L. D. Haughawout, who have testified to this amount as due from Elias Erey to Levi Erey for borrowed money) ; and if they believe that the bill of sale was made to secure this sum, and upon its payment the property was to revert to the grantor, — then the defendants, by the sheriff's sale and purchase, had acquired only a right of redemption, which Elias Erey had, and they would have no right to take the possession of the property in dispute away from the plaintiff until they paid every cent due and owing to the plaintiff, and the verdict of the jury under this state of facts should be for the plaintiff.</p> <p>Ans. Eefused. 6</p> <p>The court directed a verdict for defendants. 7</p> <p>Verdict- and judgment for defendants.</p> <p>The assignments of error specified: (1-6) The refusal of plaintiff’s points; and (7) the action of the court in directing a verdict for the defendants.</p> <p>A mortgage of personal chattels with the delivery of possession either actual or symbolical, or such as the nature and the circumstances of the property will admit of, is good both between the parties and against the mortgagor’s creditors. This is the rule as to mere personal chattels. Clo-w v. Woods, 5 Serg. & R. 275, 9 Am. Dec. 346; Boyle v. Rankin, 22 Pa. 168; Hater v. Steinruck, 40 Pa. 501; Pry v. Miller, 45 Pa. 441; Coble v. Nonemaker, 78 Pa. 501; Bismark Bldg. & L. Asso. v. Bolster, 92 Pa. 123.</p> <p>In a contest between the assignee, of the lessee of a lease for years, and a purchaser at sheriff’s sale of the leasehold premises by a creditor of the lessee, in an action of ejectment, it was held that leases for years, under twenty-one years, accompanied by possession by the lessee, need not be recorded, nor assignments of such leases. Williams v. Downing, 18 Pa. 60; Bismark Bldg. & L. Asso. v. Bolster, 92 Pa. 123.</p> <p>The learned court below directed a verdict for the defendants, under the authority of Passmore v. Eldridge, 12 Serg. & R. 198. That was the case of an assignment absolute, of personal goods and chattels, with a secret agreement that the assignor should have released to him a portion of the proceeds of the sale of the goods. The court, even in that case, did not take the case from the jury, but submitted the facts to them to find under instructions given. The question was one of fraud in fact, arising under the statute of 13 Eliz., was so held by the court, and the question of the fraudulent intent was necessarily for the j^y.</p> <p>Where a debtor owes two parties one of them may accept payment of his debt in anything of value he may get, although he knows that the debtor owes the other party and cannot pay both. Hopkins v. Beebe, 26 Pa. 85; Lloyd v. Williams, 21 Pa. 327.</p> <p>Although the defendants are in failing circumstances, yet they have the right- to secure a bona fide debt by judgment, although other creditors may be defeated thereby; and the questions as to the validity of the debt are for the jury. Keen v. Kleclmer, 42 Pa. 529.</p> <p>The effect of such preference may be to delay a creditor not preferred, in fact to prevent his obtaining payment at all; but if the motive, the honest intent, was to pay the preferred debt, the transaction is not invalidated by statute. York County Bank v. Carter, 38 Pa. 453, 80 Am. Dec. 494.</p> <p>Whenever the fraud is apparent upon the face of an instrument it is a question of fraud in law, and there is nothing for a jury to pass upon.</p> <p>Where the instrument, however, appears to be fair, and its validity depends upon extrinsic evidence, the question must be submitted to the jury to determine, as a matter of fact, whether it is fraudulent or not. Bump, Fraud. Conv. 362; Shontz v. Brown, 27 Pa. 123; Loueheim Bros. v. Henszey, 77 Pa, 308; 'Graver v. Miller, 65 Pa. 457; Ferris v. Irons, 83 Pa. 179; Johnson v. Curtis, 42 Barb. 588; Ford v. Williams, 24 N. Y. :359.</p> <p>Where the transaction, although suspicious, is capable of a ■construction consistent with fairness, and the absence of fraud, it must be passed upon by a jury. Ford v. Williams, 24 N. Y. ■364; Smith v. Acker, 23 Wend. 653; Butler v. Van Wyck, 1 Hill, 438.</p> <p>The consideration in a conveyance is suceptible of explanation ¡by parol. The true consideration may be shown, although the •consideration named may be of money. McKinster v. Babcock, 26 N. Y. 378; Shirras v. Caig, 7 Craneh, 34, 3 L. ed. 260.</p> <p>It may be shown by parol that the consideration named in a judgment or mortgage was in whole or in part for note or mortgage, and in part for future advances. Lawrence v. Tucker, 23 How. 14, 16 L. ed. 474; Truscott v. King, 6 N. Y. 147; Bank ■of Htica v. Finch, 3 Barb. Ch. 293.</p> <p>Where a conveyance of land is made as security to a creditor, although it is absolute on its face, it is not therefore a fraudulent conveyance, either as regards the grantee or other creditors. Kigney v. Tallmadge, 17 How. Pr. 556.</p> <p>We have looked in vain in Pennsylvania and other states to find a case where a mortgage given to secure an honest debt was ever declared fraudulent, and no cases exist except where a bankrupt law has intervened to so determine it. In our own state we have innumerable cases of absolute deeds having been declared mortgages by parol evidence, and many cases where the mortgagors were largely indebted (Danzeisen’s Appeal, 73 Pa. 65; Sw'eetzer’s Appeal, 71 Pa. 265; Harper’s-Appeal, 64 Pa. 315) ; but in no case in Pennsylvania has it ever been ruled that such a mortgage was any the less a mortgage as between the parties or as to creditors, because the condition of defeasance was not expressed in the deed.</p> <p>If such a mortgage would be fraudulent as to creditors, it would bind the parties to the fraud and hence would be treated, as between the parties or as to creditors, as an absolute conveyance. The law would leave the parties where they put themselves. See also Rahn v. M’Elrath, 6 Watts, 151; and- Williams v. Downing, 18 Pa. 60.</p> <p>No man bids for either freehold or leasehold without having investigated the qualities and value of the property. Sowers v. Yie, 14 Pa. 99; Titusville Novelty Iron Works’ Appeal, 77 Pa. 103; Christie’s Appeal, 85 Pa. 466.</p> <p>A transfer of personal property which creates a trust, whether secret or avowed, in favor of the grantor, renders the transaction fraudulent and void in legal contemplation, even though there may be mingled with it provisions in favor of preferred creditors. Shaffer v. Watkins, 7 Watts & S; 219; Pass-more v. Eldridge, 12 Serg. & R. 201; M’Culloch v. Hutchinson, 7 Watts, 434, 32 Am. Dec. 776; Connelly v. Walker, 45 Pa. 449; Bentz v. Rockey, 69 Pa. 77.</p> <p>A transfer of property between father and child, when the seller is indebted, and more especially if he is in danger of immediate execution, naturally arouses suspicion of fraud, and adds to the weight of other evidence tending to prove it. Eorsyth v. Matthews, 14 Pa. 100, 52 Am. Dec. 522.</p> <p>The father could not be a bona fide purchaser if he combined with the son to place the property beyond the reach of the son’s creditors. If the sale was for the purpose of hindering, delaying or defrauding creditors, it is not protected against execution. Kaine v. Weigley, 22 Pa. 179; Kepner v. Burkhart, 5 Pa. 478.</p> <p>If the bill of sale was made with intent to hinder, delay, or defraud creditors, it is not bona fide, although made for a full consideration. Zerbe v. Miller, 16 Pa, 497; Bunn v. Ahl, 29 Pa. 388, 72 Am. Dec. 639.</p> <p>A chancellor will not decree a deed absolute on its face to be a mortgage, on proof of the mere verbal declaration of the parties ; but facts and circumstances must be shown inconsistent with the idea of an absolute sale. The debt must survive. It is not enough that the evidence of it remains in the grantee’s hands if the liability is gone. Todd v. Campbell, 32 Pa. 250.</p>

July Term, 1886, No. 4, E. D., before Gordon, Oh. J., Paxson, Sterrett, Green, Clark, and Williams, JJ. Appeal from an order of the Common Pleas of Schuylkill County discharging rules to open certain judgments. The judgments were confessed in amicable actions by the township of Blythe in favor oí John Morris.

January Term, 1886, No. 413, E. D., before Gordon, Oh. J., Paxson, Sterrett, Clark, and Williams, JJ. Error to the Common Pleas of Schuylkill County to review a judgment for defendant in an action of trespass vi et armis.

January Term, 1887, No. 403, E. D., before Gordon, Oh. J., Paxson, Sterrett, Green, and Williams, JJ.

<p>A testator left the residue of his estate to his wife “for her use and support, and occupation and possession, as long as she remained” his widow. The will provided that in ease she remarried she was to have-only what the law allowed her, and that at her request that the land should he sold, the executor “may sell the same” and the money received therefor should be “put on interest for her support.” In the following clause the testator appointed an executor, and continued: “and (I) empower him to give a deed for my real estate, the same as I myself could have done if living.” The widow remarried and thereafter letters of administration c. i. a. were granted upon the estate, and she requested a sale, and the administrator sold the property to the defendant, who-refused to accept a deed, claiming that the administrator had no power to make title. Held, that the administrator had power to sell under the will, and the fact that the sale was made at the request of the widow after-her remarriage was of no consequence.</p> <p>Cited in Still’s Estate, 12 Pa. Co. Ct. 379, 2 Pa. Dist. R. 105, 31 W. N. C. 252.</p> <p>Note. — An administrator o. t. a. may exercise power of sale given to the-executor by the testator. Potts v. Breneman, 182 Pa. 295, 37 Atl. 1002;' Tarrance v. Reuther, 13 Montg. Co. Rep. 162; Still’s Estate, 12 Pa. Co. Cfc.. 379, 2 Pa. Dist. R. 105, 31 W. N. C. 252.</p>

January Term, 1887, No. 387, E. D., before Gordon, Ch. J., Paxson, Green, Clark, and Williams, JJ. Appeal from a decree of the Common Pleas of Schuylkill County dissolving a preliminary injunction. Bill in equity by Simmons H. Barrett against Oliver Ditson and Henry L. Williams.

<p>January Term, 1887, No. 175, E. D., before Gordon, Oh. J., Paxson, Sterrett, Green, Clark, and Williams, JJ. Error to the Common Pleas of Delaware County to review a judgment in favor of the plaintiff in an action of trespass on the case ■for land damages.</p> <p>A jury of view awarded $800 as damages to Edward K. Springer for land taken by the Baltimore & Philadelphia Railroad Company. Springer thereupon appealed.</p> <p>The facts are fully stated in the opinion.</p> <p>At the trial before Clayton, J., the admission in evidence of a surveyor’s draft of plaintiff’s lands, across which ran a dotted line indicating the alleged division of his land, and the testimony of the surveyor,! ,and. plaintiff, on the question of the division of the land, were objected hvfeyothe. defendant, but the court overruled the objection. [1, 2] ,</p> <p>The plaintiff was asked under objection whether he had had any offers for a portion of the property for building lots before the condemnation. Objection overruled. [3]</p> <p>He testified that James F. Campbell had offered him $3.50 a front foot. The court also overruled an objection to Campbell’s testimony on this offer [5], and permitted George McCall, a witness for plaintiff, to testify that a neighboring farm brought at a sale $425 an acre. [4]</p> <p>The court excluded as a witness one Henry C. Snowden, offered by the defendant to testify in relation to the value of the land — on the ground that the witness had not shown himself competent to give an opinion as to such value. [6]</p> <p>The court charged, inter alia, as follows:</p> <p>As to these divisions the total tract of land owned by the plaintiff is about 46 acres. He alleges that it is really two tracts of land, and that, so far as one of these tracts is concerned, the jury are not entitled to assess damages against him. Upon that subject I wall say to you that if you find, upon examining this map, and from the testimony you. have heard, that the land as taken by the railroad company takes a part of each of these tracts, then they are to be considered as a whole; and according to the map, it seems to me, the land taken here does take a part of the seventeen-acre tract. If it does, then it is to be considered as a whole a tract of 46 acres. Ordinarily the damages must be confined to the land taken, or to the subdivisions from which the land is taken; and damages to other lots separated by roads or streets, alleys or permanent divisions of the land should not be taken into consideration; but where a man owns an entire tract of land, purchased by one deed, and included in one title, if it is used for one purpose, temporary subdivisions make no difference.</p> <p>You will allow for the disarrangement of the temporary subdivisions; but you do not change the mode of assessing the advantages or damages to the land. The damages and benefits are to be considered in relation to the whole tract on each side of tho road, but. the damage to the separate tracts are to be considered separately. Where a whole tract is used for one business the whole tract is to be considered as one; the land must be considered as it stands. If the jury find as a fact- that the whole tract of 46 acres has been actually divided into different farms, separated by fixed lines, not a mere temporary division bnt actually settled and a reasonably permanent one, then the damages and benefits are to be separately considered; otherwise they are to be considered as one whole tract. [7]</p> <p>Verdict and judgment were for plaintiff for $2,569.12.</p> <p>The defendant took this writ, and the assignments of error specified, inter alia: (1-6) The rulings on the evidence; and (7) the portion of the charge quoted above.</p> <p>The 13-acre tract was not so separated from the remaining land that it should be considered apart in estimating damages. Harrisburg & P. R. Co. v. Moore, 4- W. N. C. 532.</p> <p>The third and fifth specifications of error present the contention whether an offer made to the owner to purchase a part of his land, is evidence in his favor on the trial of the issue between the owner and the railroad company. The only proper test is the opinion of witnesses as to the value of land taken. East Pennsylvania R. Co. v. Hiester, 40 Pa. 53.</p> <p>The fourth specification of error presents the contention whether evidence of particular sales is admissible to establish the market value of the land under consideration. It is inadmissible. Pennsylvania & N. Y. R. & Canal Co. v. Bunnell, 81 Pa. 414; Pittsburg, V. & C. R. Co. v. Rose, 74 Pa, 362; Hays v. Briggs, 74 Pa. 373; Pittsburgh & W. R. Co. v. Patterson, 107 Pa. 461; East Pennsylvania. R. Co. v. Hiester, 40 Pa. 53.</p> <p>—Under the evidence we submit that the 13-acre tract was a separate and distinct property. Harrisburg & P. R. Co. v. Moore, 4 W. N. C. 532; Todd v. Kankakee & I. River R. Co. 78 111. 530.</p> <p>“The amount of damages claimed for land taken in the constructing of the Wabash & Erie Canal, under the act to provide for a general system of internal improvement, is not affected by the benefits resulting to the claimant in eonsequencé of the canal’s enhancing the value of other land of his which is hot connected with that taken.” State v. Digby, 5 Blackf. 543'.</p> <p>When a railroad was located over two 40-acre tracts df land owned by the same person, and he released the right of wáy over one of the tracts to the company, it was error to estimate benefits that 40 acres would receive by building the road, and deduct the amount from the amount of damages to the other 40-acre tract, by reason of the construction of the road. The damages and benefits should be confined to each tract separately. St. Louis, V. & T. H. B. Co. v. Brown, 58 111. 61.</p>

January Term, 1888, No. 144, E. D., before Gordon, Oh. J., Paxson, Sterrett, Clark, and Williams, JJ. Appeal from a decree of the Common Pleas of Montg’omery County dismissing exceptions to an auditor’s report. The auditor, Montgomery Evans, Esq., reported as follows: On March 29, 1887, the Larzelere Company entered in the court of common pleas of Montgomery county a judgment for $916.59 against John L. Ervin, and issued execution thereon, No. 11, J une term, 1887.

<p>July Term, 1887, No. 125, E. D., before Gordon, Oh. J., Paxson, Sterrett, Clark, and Williams, JJ. Error to the Common Pleas of Montgomery County to review a judgment in favor of the defendant, in an action on the case.</p> <p>This action was brought by Ida Barkdoll, widow of Reno L. Barkdoll, deceased, against the Pennsylvania Railroad Company, to recover damages for the death of her husband, alleged to have been caused by the negligence of the defendant.</p> <p>The facts appear in the charge of the court by Boyer, P. J., which was in part as follows:</p> <p>The first question for inquiry is as to whether the railroad company was guilty of that negligence which makes it accountable in such a case. You have had explained to you the manner of the death of Barkdoll, how that was caused by his getting between two cars; and how, in the attempt to couple them, he was crushed. The car with which he came in contact was a broken car. If that car, in that condition, had been run by the company in the ordinary course of traffic, without repair, I would have no hesitation in charging’ you that it was negligence on the part of the company to run such a car. [But the evidence is that it- had lately been broken; or, at all events, we do not hear of its having been broken before that day when it is first brought to our notice.] 1</p> <p>You have had described to you the condition in which it was ? how it was so broken that in coming in contact with another car, with which it was about to be coupled, there was not sufficient space for any man to stand between the cars while in the act of coupling’. To use such a car for ordinary purposes would have been negligence on the part of the company, because it would have increased the danger to its employees. But when a man enters the employment of a railroad company, he necessarily enters with the understanding that he must run the risks which arise from the ordinary course of business. The situation of a brakeman is always attended with some danger, but that danger every man -who hires himself as a brakeman voluntarily undertakes to incur. A railroad company, on the other hand, is bound to furnish for the use of its employees cars which are in reasonable condition of repair, so that a person exercising reasonable care would escape injury in the handling of them, except under some extraordinary circumstances which could not be prevented. But all cars are liable to breakage. Accidents are continually happening by cars coming into collision with each other, and from other causes. And therefore brakemen must incur the risk which ordinary care will not prevent in the breakage of cars; and [when a loaded car is broken, it is not negligence on the part of the railroad company to carry that car along to where it can be properly unloaded and sent to the workshop for repairs; and whatever danger might arise from that use of the car must be incurred by the employees.]2</p> <p>Now, was their car used in the ordinary traffic of the company, or had it lately been broken, and was it, as the testimony has explained to us, only sent to have its load removed, and be taken to the shop? The words, “for the shop,” were written upon it, which is corroborative evidence that that was the intention. [It was the duty of every employee who had anything to do with that car, to exercise more than ordinary caution.] 3</p> <p>Did Mr. Barkdoll exercise that caution? [If the company had a right, as I have explained, to send that car from the place where it was to have it unloaded and sent to the workshop, then in that particular the company was not guilty of negligence.]!</p> <p>Did it order Mr. Barkdoll to do anything in connection with that car, which subjected him to danger ? The testimony is that John Quinn, the assistant road master, called his attention and the attention of another brakeman, to the condition of that car, and cautioned them to be careful in handling it. William E. Eoster, the conductor of the train, testifies that he too called the attention of Barkdoll to the condition of that car, and warned him to be careful. And Jeremiah Brown, one of the brakeanen attached to the same train, says that he too conversed with Bark-doll upon the subject and that he too warned him to be careful; and when he saw7 Barkdoll enter between the cars for the purpose of coupling them, he remonstrated with him, and when Barkdoll told him that he should give the signal for backing the cars, so that he might couple it, he refused to do so; and then Barkdoll came out from between the cars, according to the testimony of Bro'ivn,. and made the signal himself to the engineer to back the train, and then, when he had set the cars in motion,, he entered again between them and attempted to affix the coupling ; in which act he was caught and killed.</p> <p>Now, whether the railroad company was guilty of some negligence or not, in the use of the car in the manner described, if Barkdoll was also guilty of any negligence in the. manner in which he undertook to couple the cars, there can be no recovery in this case; for there can be no recovery where the person injured was himself guilty of contributory negligence.</p> <p>It is for you to say whether it was contributory negligence on the part of Barkdoll, under the circumstances, after he had been warned by three different persons, to enter between the cars as he did and attempt the coupling. Could they have been coupled in any other way less dangerous ? Brown says that when he became apprehensive of the danger which Barkdoll insisted upon incurring, he offered to couple the cars himself from the top, which offer Barkdoll rejected. Do you believe this testimony? If you do, then clearly Barkdoll was guilty of contributory negligence. The fact is for you. [The warning that Barkdoll received is testified to by three different witnesses, each corroborating the others. You have seen them upon the stand. You have heard them relate the facts to which they testify. There is no witness to contradict them.] 5</p> <p>Do you believe them or not ? If you do not believe them; if you believe that the testimony in this case shows that Barkdoll was not guilty of contributory negligence; that he was careful; that he exercised prudence; and that the accident, with all his care, was inevitable by him — then the plaintiff would be entitled to recover, provided you also find that the railroad company was guilty of negligence in putting the car, under the circumstances, into the train which was to take it away. If you find that the railroad company was not guilty of negligence; or if, finding it guilty of negligence, you also find that Barkdoll was guilty of contributory negligence, — then the verdict must be in favor of the defendant.</p> <p>The defendant presented, inter alia, the following points:</p> <p>3. It was not negligence on the part of the defendant company to use the broken car, in the manner stated by the witnesses.</p> <p>Ans. Under all the facts given in evidence upon the manner in which the car was used, I see no negligence on the part of the company. 6</p> <p>On the trial plaintiff offered to prove in rebuttal that she was with her husband when he was dying and when he died, and that about an hour before his death, when he knew he was dying, he said to her that it was not his fault that he got hurt, that he could not help it. Objected to. Objection sustained.!</p> <p>Verdict and judgment for defendant.</p> <p>The assignments of error specified: (1 — 5) The portions of the charge included within brackets; (6) the answer to defendant’s point ; and (7) the rejection of the offer of evidence in rebuttal, as above.</p> <p>It was negligence in the defendant receiving the car without repairing it, and it was clearly the duty of the defendant to have refused taking the car, without repairing the same. In the case of Gottlieb v. New York, L. E. & W. B. Oo. 100 N. Y. 462, 3 N. E. 344, it was held that when cars come to a railroad company, which have defects visible, or discoverable by ordinary inspection, it must either remedy such defects, or refuse to take such cars.</p> <p>The decedent had full knowledge of the condition of, the car; indeed he first called attention to it, and after being fully warned of the danger, and advised how he could avoid it, nevertheless persisted and was killed by his own rash conduct — which clearly makes out a case of such negligence on his part as precludes a recovery by his representatives, and shows that the court dealt kindly towards the widow in submitting all the facts to the jury.</p> <p>In Brossman v. Lehigh Valley B. Oo. 113 Pa. 490, 57 Am. Bep. 479, 6 Atl. 226, it is held that when an employee “after having had the opportunity of becoming acquainted with the risks of his situation, accepts them, he cannot complain, if subsequently injured by such exposure. By contracting for the performance of hazardous duties he assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had opportunity to ascertain.”</p> <p>In Pittsburgh & O. B. Co. v. Sentmeyer, 92 Pa. 276, 37 Am. Bep. 684, the present chief justice said: “When men are-hired, something must be predicated of their judgment and prudence ; and hence when the employer furnishes them with tools and appliances which, though not the best possible, may, by ordinary care, be used without danger, he has discharged his duty and is not responsible for accidents.” “A servant or employee assumes the risk of all dangers in his employment, however they may arise, against which he may protect himself by the exercise of ordinary observation and care.”</p> <p>Contributory negligence in any degree on the part of the plaintiff will prevent a recovery in an action for damages. Monongahela City v. Fischer, 111 Pa. 9, 56 Am. Eep. 241, 2 Atl. 87; Lehigh Valley E. Co. v. Greiner, 113 Pa. 600, 6 Atl. 246; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185, 36 Am. Eep. 662; Green & C. Street Pass. E. Co. v. Bresmer, 97 Pa. 103; Marsden v. Iíaigh, 14 W. N. C. 526; Lehigh Valley Coal Co. v. Jones, 86 Pa, 432; Payne v. Eeese, 12 W. N. C. 97;</p>

January Term, 1888, Nos. 231, 232, E. D., before Gordon, Oh. J., Paxson, Sterrett, Clark, and Williams, JJ. Writs of error to the Common Pleas of Montgomery County to review judgments in favor of the defendant on appeals from viewers, March Term, 1886, Nos. 56, 57. Both cases were brought by Jacob G. Landes against the borough of Norristown, and were tried together in the common pleas.

<p>July Term, 1887, No. 81, E. D., before Gordon, Oh. J., Paxson, Sterrbtt, Green, Clark, and Williams, JJ. Error to the Common Pleas of Northampton County to review a judgment in favor of the plaintiff on an appeal from a justice of the peace, December Term, 1884, No. 11.</p> <p>This action was brought before a justice of the peace by William Allen, to recover a balance claimed to be due on unsettled accounts with Joseph Wise, Reuben Wise, and Hiram Wise, trading as Wise Brothers. The justice awarded judgment for the plaintiff for $49.43. The defendants thereupon appealed to the common pleas. No copy of the transcript of the justice appeared in the paper book of the plaintiffs in error.</p> <p>At the trial before Reeder, J., the plaintiff claimed balances due on three several contracts of $104.45, $83.04, and $167.80, mailing a total of $355.29. The defendants then asked the court to dismiss the case, as it appeared that the claim was for more than $300. The court refused the application. [1]</p> <p>At the close of the plaintiff’s case, his counsel offered to remit the sum of $68 being the amount of certain credits given the defendants for orders on them which the plaintiff had claimed were not paid. The court permitted the reduction [2] and refused to enter a compulsory nonsuit. [3]</p> <p>The court charged, inter alia, as follows:</p> <p>“This case comes here on an appeal from the decision of a justice of the peace, and the defendants claim that it was not within the jurisdiction of the justice of the peace as a matter of law. The question of the jurisdiction of the justice of the peace is not a matter that can be settled in this proceeding. If a justice of the peace assumes jurisdiction over a subject-matter, or over a claim the amount of which is greater than that where the law gives him jurisdiction, the action of the justice must be reviewed by a writ of certiorari, and not by an appeal. Therefore, the question whether the justice had jurisdiction or not is not directly before us in this case.</p> <p>“There is, however, a rule of law which provides that if upon the trial of a case upon an appeal it there appears, the cause of action being the same, that the claim submitted in the court is larger than the sum over which the justice of the peace would have jurisdiction, or if it is a subject-matter over which he •would not have had jurisdiction, then the court of common pleas, upon appeal, will not permit the entry of judgment. Therefore, we cannot review in this action the question whether the justice of the peace had jurisdiction over the case as submitted to him, or not. We can only pass upon the question whether the case, as submitted to us, would have been within the jurisdiction of the-justice of the peace if it had been presented there in the same way — the cause of action being the same before the justice.</p> <p>“As the claim here is for less than $300, and as it therefore would have been within the jurisdiction of the justice of the peace, I say that it must be submitted to you .-for your action.” [4]</p> <p>Verdict for plaintiff for $63.34, and judgment thereon.</p> <p>The assignments of error specified the action of the court: (1) In refusing to dismiss the appeal; (2) in allowing the plaintiff to remit part of his claim; (3) in overruling the motion for a nonsuit; and (4) the portion of the charge above set forth.</p> <p>As to jurisdiction an appeal is not de novo. If the question is as to the subject-matter it must be a matter over which the justice had jurisdiction and if a« to amount it must be within the limit of his jurisdiction, and it must remain within his jurisdiction. It will not do for him to start with a claim within the jurisdiction of a justice by admitting false credits or omitting any items of charge. Collins v. Collins, 37 Pa. 390; Bower v. McCormick, 73 Pa. 427; Peter v. Schlosser, 81 Pa. 439; Stro-h v. Uhricli, 1 Watts & S. 59; Walden v. Berry, 48 Pa. 457; Linton v. Vogel, 98 Pa. 457; Weidenhamer v. Bertie, 103 Pa. 449.</p>

January Term, 1888, No. 156, E. D., before Gordon, Oh. J., Paxson, Sterrett, Green, Clark, and Williams, JJ. Appeal from a decree of the Common Pleas of Clearfield County on the distribution of money arising from a sale by the sheriff of real estate of a defendant in lev. fa. sur mechanics’ lien, May term, 1887, No. 286. On payment of the money into court, S. V. Wilson, Esq., was appointed auditor to make distribution thereof.

January Term, 1887, No. 287, E. D., before Gordon, Oh. J., Paxson, Sterrett, Clark, and Williams, JJ; Error to the 'Common Pleas of Clinton County to review a judgment on a verdict for the defendant in a sheriffs interpleader, January term, 1887, No. 31.

January Term, 1888, No. 266, E. D., before Gordon, Oh. J., Paxson, Sterrett, Green, and Widliams, JJ. Error to the Common Pleas of Lackawanna County to review a judgment on a verdict for the plaintiff in anactión of trespass, October term, 1883, No. 598. The facts are stated in the charge of Knapp, A. L. J., which was substantially as follows: This is an action of trespass brought by the plaintiff, Mary C. Beemer, against the defendant, Jacob Keizer.

July Term, 1887, No. 112, E. D., before Gordon, Ob. J., Paxson, Stbrrett, Green, and Williams, JJ. Error to tlie Oourt of Common Pleas for Wayne County to review a judgment in favor of plaintiffs in an action of trespass on the case for negligencej December term, 1885, No. 164.

January Term, 1888, No. 360, E. D., before Gordon, Ob. J., Paxson, Sterrett, Green, Clark, and Williams, JJ. Error to the Common Pleas of Huntingdon County to review a judgment of compulsory nonsuit in an action in case for damages for the death of the plaintiffs’ son, alleged to have resulted from the defendant’s negligence, August term, 1883, No. 55.

July Term 1887, No. 155, E. D., before Gordon, Oh. J., Paxson, Sterrett, Green, Clark, and Williams, JJ. Error to the Common Pleas of Lancaster County to review a judgment for the plaintiff for want of a sufficient affidavit of defense in an action of scire facias to revive a judgment, November term ,1886, No. 39.

January Term, 1888, No. 168, E. D., before Paxson, Sterrett, Green, Clark, and Williams, JJ. Appeal from a decree of the Orphans’ Court of Erie County dismissing exceptions to an auditor’s report, September term, 1885, No. 24.

J anuary Term, 1888, No. 92, E. D., before Gordon, Oh. J., Parson, Green, Clark, and Williams, JJ. Error to the Common Pleas of Columbia County to review a judgment in favor of plaintiff in an action of trespass, February term, 1885, No. 158. The nature of the case and the questions presented, are fully stated in the charge of the court below.

January Term, 1888, No. 25, E. D., before Gobdon, Oh. J., Paxson, Stebeett, Gbeen, and Williams, JJ. Appeal from a decree of the Common Pleas of Lackawanna County discharging a rule to open a judgment entered by confession upon a judgment note October term, 1881, No. 365.

January Term, 1888, No. 68, E. D., before Gordon, Oh. J., Paxson, Sterrett, Green, and Williams, JJ.