Volume 90 — Pennsylvania State Reports

<p>Error to the Court of Common Pleas of Montgomery county : Of January Term 1878, No. 104.</p> <p>Case by Elias Kirk and Rachel his wife against the North Pennsylvania Railroad Company, to recover damages for the death of their son, which they alleged was caused by the negligent use of a certain railway siding at Abington station, on the line of the defendant’s road. ,</p> <p>The trial was before Ross, P. J. The verdict was for plaintiffs for $3050. The other material facts and the various assignments of error are sufficiently set forth in the opinion of this court.</p>

<p>Error to the Court of Common Pleas of Delaware county: Of. January Term 1877, No. 50.</p> <p>Casé stated, wherein the School District of Upper Darby was plaintiff, and the Rector, Church-wardens and Vestrymen of St. .Stephen's Church in the City of Philadelphia, Trustees of the Burd Orphan Asylum of St. Stephen’s Church, were defendants.</p> <p>The casé as stated was as follows:</p> <p>Eliza Howard Burd, deceased, late of the county of Philadelphia, by her last will and codicils thereto, proved April 11th 1860, devised and bequeathed, inter alia, to the defendants, who are a corporation, a large amount of property in trust “to establish an asylum for poor white female orphans,” to be called “ The Burd Orphan Asylum of St. Stephen’s Church.” The will thus declares1 the object of the asylum:</p> <p>“ The objects of the said asylum shall be to maintain, educate, and at a suitable age and time (to be judged of and determined by those to whose management I have intrusted the asylum), to place out to be instructed in proper employments — First, the white female-orphan children of legitimate birth, of the-age of not less than four years, and of not more than eight years, who shall have been baptised in the Protestant Episcopal Church in the city of Philadelphia. Secondly, the same class of children baptised in the said church in the state of Pennsylvania; and thirdly, all other white female orphan children, of legitimate birth, not less than four years of age, and of not more than eight years, without respect to any other description or qualification whatever, except that at all times, and in every case, the orphan children of clergymen of the Protestant Episcopal church shall have the preference.” * * *</p> <p>“ I desire, and do hereby direct, that in the building erected for the asylum, there shall be an. apartment prepared and set apart as a chapel, to be kept sacred for the worship of Almighty God, Father, Son and Holy Ghost, in conformity with the rites and ceremonies of the Protestant Episcopal Church. And I do hereby positively direct and enjoin that all the children received into' the asylum, shall be faithfully instructed, as part of their education, in the principles of the precious gospel of my God and Saviour Jesus Christ, as they are held and taught by the Protestant Episcopal Church in the United States, and that no other system of religion shall be taught there; and moreover, that all the worship held therein shall be according to the ritual of said church, and no other.” * * *</p> <p>“ The rector, church-wardens and vestrymen of St. Stephen’s Church are hereby authorized to control and manage the said Burd Orphan Asylum according to their best judgment and discretion, and to adopt regulations for the government of the same, provided their proceedings shall not be in conflict with the laws of the Commonwealth of Pennsylvania, with the principles and canons of the Protestant Episcopal Church, or with the directions herein given and the objects herein specified; and the Right Reverend the Bishop, for the time being, of the Protestant Episcopal Church of the diocese in which the city of Philadelphia may be, is authorized to. be and constituted a perpetual visitor of said institution, with full power to inquire, as such, into all abuses and violations of this trust, and, whenever deemed necessary by him, to interfere by legal proceedings for their correction.”</p> <p>The defendants, upon the receipt of the property thus devised and bequeathed them, purchased a piece of land in Delaware county aforesaid, containing something less than forty-five'acres, and erected thereon a building for an orphan asylum,.which building was first occupied in September 1863.</p> <p>Since that time the asylum has been open continuously for the reception of white female orphan childi’en, according to the provisions of the will, who have been received without regard as to their residence as to either state or county. These children are maintained and educated at the asylum until they arrive at the age of eighteen years. The whole number of children that have been received and enjoyed the benefits of the asylum is one hundred and twenty, sixty of whom are at the present time being maintained and educated at the asylum.</p> <p>Connected with the asylum is a church or chapel, capable of seating four hundred persons, in which divine service is held twice a day every Sunday, according to the rites and ceremonies of the Protestant Episcopal Church, the said services being conducted by a duly ordained minister of that church; and these services are, by direction of the trustees, free to all, and attended by many of the neighbors as their parish church.</p> <p>With the exception of the chapel, so used as aforesaid, the land and buildings of the asylum are devoted exclusively and entirely to the maintenance and education of the orphan children received into the asylum, in accordance with the provisions of the will. A copy of said will is hereto annexed and made part hereof.</p> <p>The defendants are a corporation, incorporated May 21st 1823, under the Act of Assembly of April 6th 1791, in such case made and provided, by the title of “ The Rector, Church-wardens and Vestrymen of St. Stephen’s Church in the City of Philadelphia.”</p> <p>There have been levied upon the real and personal property of the defendants, as trustees aforesaid, according to the adjusted valuation thereof furnished by the commissioners of Delaware county, as per schedule hereto annexed, for school purposes, taxes for the years 1874, 1875 and 1876, amounting in the aggregate to $232.13, the amount for each year being stated in said annexed schedule. These taxes were levied by the plaintiff in June of each year, for the said three years respectively, and are admitted to be correct apportionments of the said taxes on the amount of real and personal property belonging to the defendants, but which the said defendants object to paying on the ground that the said property is exempt from taxation under the laws of the Commonwealth.</p> <p>If the court shall be of opinion that the real and personal property of the defendants, used as aforesaid, is thus taxable for the benefit of the school directors of Upper Darby, then judgment to be entered for the plaintiffs for the sum of $282.13, or for such part thereof as the court shall determine the said property is taxable for, according to the schedule annexed. If the court shall be of opinion that the said property is not thus taxable at all, judgment to be entered for the defendants. Costs to follow the judgment, and either party reserving the right to sue out a writ of error.</p> <p>The court, Clayton, P. J., delivered the following opinion:</p> <p>“ The defendants are the trustees of a charitablé institution, founded by Eliza Howard Burd. They claim that, under the constitution and laws of Pennsylvania, their property is exempt from the payment of school tax. The ninth article of the constitution of Pennsylvania declares that all taxes shall be uniform upon the ■same class of subjects, but that the legislature may, by general laws, exempt ‘institutions of purely public charity,’ and that all laws exempting other than the property enumerated therein shall be void. Under this power in the constitution, the legislature, by general law, Act of May 14th 1874, P. L. 158, exempted from taxation ‘all hospitals, universities, colleges, seminaries, academies, associations and institutions of' learning, benevolence, or charity, founded, endowed and maintained by public or private charity.’</p> <p>“ In order to ascertain the true sense of this enactment, it must he construed in conformity with the foregoing clause of the constitution, and must therefore be read as though the words ‘ purely public’ were inserted after the words ‘ benevolence or charity.’ .To read the act in any other way would be clearly unconstitutional. All that the constitution requires is, that the object of the institution shall be a purely public charity. It may be founded, endowed and maintained by private charity; that is to say, by private benevolence, good-will, liberality and alms-giving. Most public charities are so endowed: 2 Kent 274. The only question, therefore, to be now decided is, whether the institution of which the defendants are the trustees is a ‘purely public charity;’ if it is, then the plaintiffs admit it to be exempt from taxation, but if not, the judgment must be for’ the plaintiffs upon the case stated.</p> <p>“ The cases cited by the plaintiffs’ counsel do not apply with the force he contends for. They mostly relate to the distinction between public and private corporations; but it is quite clear that a charitable corporation may be strictly a private one, yet the charities it dispenses may be purely public. The question in this case is not, whether the Burd Orphan Asylum of St. Stephen’s Church is a public or private corporation, but whether the charity the corporation dispenses is of a, purely public nature. This depends upon the extensiveness of the objects of the institution. A college or a hospital founded by a public benefactor, which extends its benefits to the people of any municipal division of the public, no matter how small its territorial limits may be, is a public charity; thus a hospital for the use of the people of a particular parish, though a private corporation, is nevertheless a public charity. Every charity which is extensive in its object may, in a certain sense, be called a public charity: Attorney-General v. Pearce, 2 Atk. 88.</p> <p>“ A charity need not be universal in order to be a public one. It may be for the poor, the blind, for widows, or for orphans of a parish or township, or of a city, county, state or government. Our constitution requires that the charity shall not only be of a public nature, bnipurely of a public one. A charity, therefore, restricted to a particular religious denomination, or to persons baptised in a certain faith, is not a purely public charity, no matter how extensive its object may be among the persons of the religious faith to whom it is restricted. When the people of Pennsylvania adopted the present constitution, they saw proper to restrict the charities, which were to be exempt from taxation, to purely public ones. As before stated, they did not mean those only which might be founded or endowed by the public, but they required that the objects should be public, and they inserted the adverb purely before the word public for some purpose. We have no authority to strike it out. The word in its ordinary meaning signifies: without any mixture of that which is foreign; without connection with, or dependence upon, anything else; absolutely, entirely. If the charity depends upon a religious test, or is restricted to a particular sect, or if the preference is to be given to persons baptised in a certain faith, in such a manner as probably to absorb the entire benefit of the founder’s bounty, it is not a, purely public charity.- By applying these principles to the institution in question, we can easily ascertain whether it is such a purely public charity as is contemplated by the constitution and Act of Assembly, as above cited.</p> <p>“The institution known by the name of the ‘Burd Orphan Asylum of St. Stephen’s Church’ is a private corporation. Mrs. Burd, by her will, proved April 11th I860, devised to the corporation a large amount of property in trust to establish the institution. The object of the institution, as declared by its charter, is to educate and, at a suitable age and time, to place out to be instructed in proper employments :</p> <p>“ 1. The white female orphan children of legitimate birth, of the age of not less than four years and not more than eight years, who shall have been baptised in the Protestant Episcopal Church, in the city of Philadelphia.</p> <p>“ 2. The same class of children baptised in the said church, in the state of Pennsylvania, and</p> <p>“ 3. All other white female orphan children of legitimate birth, not less than four years of age and not more than eight years, without respect to any other description or qualification whatever, except that at all times, and in any case, the orphan children of clergymen of the Protestant Episcopal Church shall have the preference.</p> <p>“ The institution is to be presided over by the Bishop of the Protestant Episcopal Church of the Diocese of Pennsylvania, and a chapel is to be maintained therein for religious worship, according to the Protestant Episcopal faith.</p> <p>“ Can this institution, in any proper sense, be called a purely public charity? Upon a cursory view, the third class of persons entitled to the benefits of this charity would appear to be the general public, being white female orphans, of the age named; but, upon a careful reading, even this apparent public benefit is postponed to the daughters of Protestant Episcopal clergymen throughout the world. It is to be taken for granted that the institution is limited in its capacity. It would most likely be filled by orphans who have been baptised in the Protestant Episcopal Church in the city of Philadelphia. If any. room remains the orphans, so baptised, throughout the whole state of Pennsylvania, are to be next provided for, and if there is still accommodation for more, then the daughters of Episcopal clergymen throughout the world are to be received before the children of the general public of the city of Philadelphia, or any other place, can enter it. The exclusion, therefore, of the general public is so great as to amount to almost absolute rejection. Perhaps the object of the word purely, in the constitution, was to meet just such delusive public charities as this.</p> <p>“While, therefore, the institution is highly beneficial to the public, and its object very commendable, it is clearly not a purely public charity, and not included within the Act of Assembly-exempting its property from taxation for school purposes. Judgment is therefore ordered for the plaintiff, on the case stated, for $232.13.”</p> <p>The defendants took this writ, and assigned this order for error.</p>

<p>Error to the Court of Common Pleas of Chester county: Of July Term 1877, No. 13.</p> <p>Assumpsit by John R. Johnson against Francis H. Gheen, William H. Morgan and George B. Hickman, trading as Gheen, Morgan & Co., to recover a balance alleged to be due to plaintiff from defendants on certain transactions in stocks. Defendants pleaded non assumpserunt, payment, payment with leave and set-off. At the trial, before Butler, P. J., the following facts appeared. The defendants were bankers and brokers in West Chester, Pennsylvania. Johnson, who did business with the firm, lived at Downing-town, a few miles distant. Desirous of having some dealings in stocks, Johnson applied to the firm for a letter of introduction to their correspondent in Philadelphia, and they gave him the following:</p> <p>“West Chester, Pa., May 16th 1876.</p> <p>John W. Gilbough, Esq., Philadelphia. — Dear Sir: — This will introduce to you Mr. John R. Johnson, of Downingtown. Any orders he may give you please execute on our account] and advise us.</p> <p>Yours truly,</p> <p>Gheen, Morgan & Co.”</p> <p>On the 14th day of July 1876, Johnson called on Gilbough at Philadelphia, presented his letter of introduction from the defendants, and gave Gilbough orders to sell for him two hundred shares of Hestonville Passenger Railway stock, at 34f, sellers 30. The order was given verbally by Johnson to Gilbough, and Johnson was subsequently informed personally by Gilbough of the sale. On the same day Gilbough advised Gheen, Morgan & Co., of the sale by letter, as follows:</p> <p>“Philadelphia, July 14th 1876.</p> <p>Messrs. Gheen, Morgan & Co. — Dear Sirs: — 1 sold for John R. Johnson to-day, two hundred Hestonville R. R. at 34f, s. 60. Also advised you by wire.</p> <p>Resp’y yours,</p> <p>J. W. Gilbough.”</p> <p>On the next day, July 15th, Johnson called on Gilbough and gave him directions to sell for him four hundred shares of Heston-ville at 35, sellers 60. This order Gilbough executed, informed Johnson personally of the sale, and also advised the defendants by letter, as follows:</p> <p>“Philadelphia, July 15th 1876.</p> <p>Messrs. Gheen, Morgan & Co. — Dear Sirs : — lour telegram of to-day is received. I sold for John R. Johnson to-day four hundred Hestonville at 35, sellers 60. This makes six hundred shares in all, and we had better have $3000 margin, as the stock is very active, and margins are being called all the time. Omitted to notify you of sale of one hundred Titusville at 10, s. 60, yesterday.</p> <p>Respect, yours,</p> <p>J. W. Gilbough.”</p> <p>On July 18th 1876, Johnson called in person on Gilbough, and ordered him to sell one hundred shares of Hestonville at 36, sellers 60, and one hundred shares at 37, sellers 60. Both these sales were made by Gilbough and reported to Johnson in person, the last one hundred shares having been sold for 87f, sellers 60. The sales were also reported to Gheen, Morgan & Co. in the following correspondence:</p> <p>“Philadelphia, July 18th 1876.</p> <p>Messrs. Gheen, Morgan & Co. — Dear Sirs: — Your telegram of to-day is received. I sold, to-day, for J. R. Johnson, one hundred Hestonville at 36, s. 60. Also have an order from Mr. Johnson to sell another one hundred at 37, s. 60. Please to confirm the order. Please keep me margined on all this Heston-ville, as the market is excited and advancing, and prompt responses have to be made to keep contracts good.</p> <p>Respectfully yours,</p> <p>J. W. Gilbough.”</p> <p>“Philadelphia, July 20th 1876.</p> <p>Messrs. Gheen, Morgan & Co. — Dear Sirs: — Your favor of the 19th inst. with stated enclosure is received. Draft on N. Y. for $2350.58. I sold for J. R. Johnson to-day, one hundred Heston-ville at 37f, s. 60.</p> <p>Respectfully yours,</p> <p>J. W. Gilbough.”</p> <p>In- response to this call for margin, Gheen, Morgan & Co., on the 19th of July 1876, enclosed to Gilbough a draft on New York for $2350.50, as margin on sales of Hestonville stock made by Gilbough for plaintiff, and on the day following sent $2500 more as margin. On the day of its date they sent the following letter to Johnson:</p> <p>“West Chester, Pa., July 20th 1876.</p> <p>John R. Johnson. — Dear Sir: — Will you favor us by giving us additional margin on your Hestonville ? We were called upon from Philadelphia and had to send $2500 to-day. You will oblige us by giving this your early attention.</p> <p>Yours truly,</p> <p>Gheen, Morgan & Co.”</p> <p>To this letter Johnson paid no attention until July 26th, when all the sales had been made by Gilbough for him, and Gheen, Morgan & Co,, had sent as margin for his contracts made through Gilbough, the sum of $4800. On July 26th, he came over from Downingtown to see Gheen, Morgan & Co., and assigned to them a judgment bond of $4000, as collateral for the $4800 advanced by them on margins, and promised to come over the next day and bring them money or further security. This he never did, and on July 29th, they again wrote him as follows :</p> <p>“West Chester, Pa., July 29th 1876.</p> <p>Mr. John R. Johnson, Downington, Pa. — Dear Sir: — You will please come over on Monday morning and bring us margin on your stock contracts. Our' reports to-day quote Hestonville at 41f. You will please bring sufficient with you to margin it up to 45 at least.</p> <p>Yours truly,</p> <p>Gheen, Morgan & Go.”</p> <p>No response was ever made by Johnson to these letters, nor was there any additional margin ever placed with Gheen, Morgan & Co. by Johnson to cover the sums sent to Gilbough. • During all these transactions between Johnson and Gilbough, Gheen, Morgan & Co. had no intercourse with Johnson upon the subject. They did not advise Johnson of the sales of Hestonville, that being always done by Gilbough direct. Their whole agency in the matter was to keep Gilbough secure in margins on such sales as he from time to time made in obedience to Johnson’s directions to him, and to this end Gheen, Morgan & Co. sent $4800 of their own funds to Gilbough. Johnson was daily in Philadelphia, gave all orders for sales of Iiestonville in person; was in the gallery of the stock board room and Gilbough’s office constantly, and followed his own judgment in all these stock transactions.</p> <p>Of the eight hundred shares of Hestonville stock two hundred-were sold on 14th July 1876, to Bond, Moxey & Co., at 34|, sellers 30, and on July 15th 1876, two hundred shares at 35, sellers 60, making in all four hundred shares. To secure these sales, Bond, Moxey & Co. called on Gilbough for margin, and to cover these sales for Johnson, Gilbough, on July 22d and 27th 1876, deposited with Messrs. Bond, Moxey & Co. $2475. Johnson was informed by Gilbough of the sales of four hundred shares to Messrs. Bond, Moxey & Co., and of their call for margin, and of the money having-been furnished by the defendants. Messrs. Bond, Moxey & Co. were brokers in Philadelphia and members of the Board of Brokers; they represented the parties that were purchasing Hestonville stock and were buying that stock largely. Johnson had talks with Mr. Bond, a member of that firm, and reported what he learned through him to Gilbough. On or about July 29th 1876, Hestonville Railroad stock declined, and when Messrs. Bond, Moxey & Co. were called upon to make good their purchase of four hundred shares of that stock, they were unable to fulfil their contract; the margin on their hands, $2475, was forfeited and charged up against Johnson in the settlement between himself and Gheen, Morgan & Co. It was to recover this sum, $2475, thus deposited as margin, together with the difference between the price at which Bond, Moxey & Co. had purchased the four hundred shares and 27J, the price at which Johnson purchased stock to cover his sales, that this action was brought.</p> <p>On the stock transactions in Hestonville, which were made good, Johnson derived a profit of $971.73, and this Gheen, Morgan & Co. paid to him.</p> <p>The defendants submitted the following points, to which are appended the answers of the court:</p> <p>1. The letter of introduction, dated May 16th 1876, given by the defendants, introducing the plaintiff to John W. Gilbough, created no liability upon the part of the defendants to the plaintiff, for the subsequent conduct of the said John W. Gilbough, in the purchase and sale of stocks, for and on account of the plaintiff, by the said John W. Gilbough.</p> <p>Ans. “ This is true. Of itself the letter did not create such liability. But it is evidence for your consideration, with other facts tending to show the relation of the parties, and thus bears on the question of liability.”</p> <p>3. There is no liability upon the part of the defendants to the plaintiff in this action for the conduct of John W. Gilbough, in the purchase or sale of stocks made by him for the plaintiff, in pursuance of orders or directions given to him by the' plaintiff, without their intervention or previous knowledge.</p> <p>Ans. “ This point is true. That is, if the defendants were not connected with the plaintiff as his agents-respecting this business; if Mr. Gilbough was his agent — not theirs, in this transaction— they are not responsible here.”</p> <p>4. If John W. Gilbough, acting in pursuance of orders or directions given him by the plaintiff to sell for him (the plaintiff) 400 shares of the stock of the Hestonville Passenger Railway, on or about the 15th day of July 1876, sold said stock to Bond, Moxey & Co., who were, at the time of said sale, members of the Board of Brokers in good and regular standing, and said sale was in pursuance of the rules governing the said Board of Brokers, then there is no liability on the part of the defendants to the plaintiff in this action, for any loss that may arise from such sale.</p> <p>Ans. “ This is true as respects the loss of sale. But the controversy here is about the loss of money deposited as margin, and presents a different question, of which we will speak more fully in the general charge.”</p> <p>5. If the jury believe that the plaintiff, in pursuance of a letter from the defendants, calling for margin upon sales of stock made for him through John W. Gilbough, and in pursuance of his (the plaintiff’s) order, did deposit a sum of money or securities with the defendants, to be applied in that way and for that purpose, then there can he no recovery in this action'for the amount of the margin so deposited and applied, and their verdict with respect to the same must be for the defendants.</p> <p>Ans. “ This point is true, unless it appears that the money was lost through negligence of the defendants, or an agent employed by them about the business.”</p> <p>The verdict was for plaintiff for $2551.22. The defendants took this writ, and, inter alia, assigned for error the answers to the foregoing points.</p>

<p>Error to the Court of Common Pleas of Chester county: Of January Term, 1879, No. 98.</p> <p>Scire facias sur mechanic’s lien issued by Benjamin D. Price against William S. Kirk.</p> <p>The claimed filed set forth:</p> <p>“ The amount claimed to be due is $195, for drawings, plans and specifications, and for labor and services in and about directing and overseeing the same, furnished from October 5th 1874, to November 29th 1875, by the claimant as an architect, for and about the erection and construction of said building.”</p> <p>The defendant pleaded that the work and labor set forth in the claim were not the subject of a mechanic’s lien.</p> <p>The case was heard without a jury by Butler, P. J., who found the following facts:</p> <p>“ That the plaintiff is an architect; that his claim is for preparing drawings and specifications for the house against which his lien is entered and (in his own language) three visits to West Chester to locate the building and explain the drawings to mechanics. We find, however, that he visited West Chester but once to explain the drawings; that this was before the building was commenced and consumed a very short period of time. He did not superintend the construction of the house or have anything to do with it, other than has been stated.”</p> <p>The court also found that the lien was not filed in time, but this question was not raised at the trial.</p> <p>In an opinion the court, inter alia, said:</p> <p>“ It is difficult to see how plaintiff can be held to have performed ‘work for or about the construction of the building.’ The claim filed is for ‘ drawings, plans and specifications, and for labor and services in and about directing and overseeing the same.’ It is further stated that these plans were for the construction of a building. The drawings of plans and specifications of itself, is not ‘ work’ within the meaning of the statute; not work in the ordinary sense of the term. An architect is not a mechanic or laborer. The plaintiff here has no better claim to a lien than the scrivener who copies specifications or draws contracts for the building or the surveyor who draws the plan upon the ground. Judgment must, therefore, be entered for the defendant.”</p> <p>This action was assigned for error by the plaintiff who took this writ.</p>

<p>1. A promissory note is void, where the consideration therefor is the promise of the payee that he will refrain from prosecuting the son of the maker for forgery.</p> <p>2. Fulton v. Hood, 10 Casey 865, distinguished.</p>

<p>Error to the Court' of Common Pleas of Chester county: Of January Term 1879, No. 85.</p> <p>Scire facias sur mortgage issued May 22d 1877, by Robert Neeley against The McLean & Benner Machine Company, mortgagors, and Thomas E. Parke, terre-tenant, the latter being the purchaser at sheriff’s sale of the land covered by the mortgage, under a judgment subsequent to it. The terre-tenant alone defended.</p> <p>The question was whether the mortgage was divested by the sheriff’s sale. The records in the offices of the recorder of deeds and the prothonotary showed as follows:</p> <p>Neeley, on the 11th of May 1875, was the owner of a lot (that covered by the mortgage) in Downingtown, Chester county, which on that day had been conveyed to him by the Downingtown Building and Improvement Company. He afterwards, for the consideration of $8500, conveyed the same lot to The McLean & Benner Machine Company. The deed was dated January 1st 1876, and in the conclusion it stated that it was executed “the day and year above written.” Following the signature is: “ Received the day of the date of the above written indenture, the sum of three thousand five hundred dollars, being the consideration within named.</p> <p>Robert Neeley.”</p> <p>The acknowledgment followed the receipt, and was taken .January 11th 1876. The justice who took the acknowledgment was one of the witnesses to the deed: it was recorded February 21st 187 6. The McLean Machine Company made the mortgage in suit to Robert Neeley. It is dated January 1st 1876, and is between The McLean Co. and Robert Neeley. It recites that the mortgagors by an obligation bearing even date with the mortgage were bound to Neeley in $7000, conditioned to pay $8500 on the 1st of January 1877, with interest semi-annually (the said sum being for the purchase-money of the hereinafter mentioned premises). The premises mentioned are the same as those conveyed by the deed to The McLean Company, but are recited as being the premises conveyed by the Downingtown Improvement Company to Neeley with the date of their deed, May 11th 1875.</p> <p>The conclusion was:</p> <p>“ In witness whereof, the said Machine company has caused this mortgage to be executed in its behalf by its president, and its common or corporate seal to be hereto affixed the day and year first above written.</p> <p>John McLean, President.” [l. s.]</p> <p>It was acknowledged by John McLean, President, before Alder- ' man William P. Hibberd (who was a witness to it), February 29th 1876. The mortgage was recorded March 2d 1876. On the 8th of May 1876, and subsequently, a large number of mechanics’ liens were entered against the McLean company, on the premises. The claims on which the liens were entered were filed at the time of their entry. They showed that work or materials were furnished from November 18th 1875, through December, January and February following, and afterwards. One of these claims was by James Copeland. His first item was December 15th 1875. This lien 'was assigned to'Neeley. Another was by Robert Neeley himself. His first item was also December 15th 1875. This lien was entered September 25th 1876. On the 25th of October 1876, one Graham recovered a judgment against the McLean company. On a venditioni on this judgment to January Term 1877, the premises were sold by the sheriff to Thomas E. Parke, for $1250. The sheriff’s deed to him was acknowledged March 14th 1877. An auditor was appointed to make distribution of the proceeds of the sale. They were all distributed amongst the mechanics’ lien creditors, and proved insufficient to pay them in full. Robert Neeley received a dividend on his own claim, and Copeland’s, assigned to him.</p> <p>On the trial, the plaintiff gave in evidence the mortgage and its record, and rested. The terre-tenant then gave in evidence the above-mentioned matter of record, and by oral testimony the following evidence:</p> <p>The lot, when sold to Neeley by the Downingtown Improvement Company, had on it a building, erected by them for factory purposes. Shortly before November 19th 1875, there was a meeting of the citizens of Downingtown and vicinity with officers and members of the McLean company — then an incorporated company — to start that company in Downingtown. Neeley was president. Inquiries were made as to who would subscribe for that purpose. Neeley said he would give this building (the property covered by the mortgage). At a conference afterwards of a committee on the subject with a representative of the company, Neeley said he would give the building as his share, and subscribe to paper “real estate,” naming the building at $3500; others subscribed. The company immediately commenced work for the erection of an engine-house, in connection with the factory, which they also altered; they erected another building, and also a third, called “the foundry.” The work was continued until it was complete. Neeley furnished stone for the foundation of the engine-house, and also for the foundry, commencing December 15th; for this his lien was filed.</p> <p>There was evidence showing the persons who did work and furnished materials, and the times when the work was done and materials furnished.</p> <p>In rebuttal, the plaintiff, under objection and exception, gave evidence for the purpose of showing that the mortgage had been executed and delivered on a day different from its date.</p> <p>McLean, president of the Machine company, the only witness called, testified:</p> <p>The company purchased from Neeley what was called the factory property. From about December 1st 1875, until the deed was made, the president urged him to make it; he refused to deliver it until the mortgage was made. The deed was received by the president about the 14th or 15th of January, and held by him in escrow till the 17th, when it was placed amongst the company’s papers as a delivery. This was simultaneously with the execution of the first mortgage, that is on the 17th of January, the date of the acknowledgment of the first mortgage. Upon consultation, the directors agreed to make such mortgage, and Neeley was notified. The deed was dated January 1st, at Neely’s own desire, because, as witness supposed, he wanted the mortgage to draw interest from the 1st of January. He had subscribed for $3500 worth of stock. Neeley made the date of the deed without consulting the president.</p> <p>The tenant submitted a number of points, asserting in substance : that as it appeared by the records that the mortgage was not recorded within sixty days from its execution, and as there were liens on the land prior to its date, and to the recording, the purchaser at sheriff’s sale took the land divested of the lien of the mortgage, and that its lien attached only from the day it was entered of record; that the purchaser at sheriff’s sale was not required to look further than the record,' nor was he bound by any matters in pais as to the time of the execution of the mortgage; that the mortgagee, by accepting the mortgage and putting it on record, asserted that its contents were true, and is estopped as against the purchaser at sheriff’s sale from averring that its date was not the day of its execution; that although the jury might believe the time of delivery was about the 14th of January, yet, if they believed that Neeley directed that it should be dated the 1st of January, he is estopped from averring that it was executed on a different day; that as Neely claimed from the proceeds of the sheriff’s sale dividends on the two liens which preceded the entry of the mortgage, he is estopped from saying that these liens were not pi-ior to the mortgage, the proceeds of the sale being a substitute for the legal title; and that the plaintiff was not entitled to recover.</p> <p>All these points the court refused.</p> <p>In the general charge, the court, Futhey, P. J., inter alia, said:</p> <p>“ We charge you now that if you find that the deed and mortgage — the deed made to Mr..Neeley, and the.mortgage received by him for purchase-money — were delivered at the time spoken of by witness McLean, president of the Machine company, on the 17th of January, instead of the 1st day of January, when they bear date, your verdict will be for the plaintiff. I repeat: if these instruments were delivered on the 17th of January, as testified to by McLean, instead of the 1st of January, when they bear date, and when without this testimony it would be presumed they would be delivered, your verdict will be for the plaintiff, and I must say to you there is no contradiction of Mr. McLean, the only witness who speaks to the point, and that he is positive about it that the deed was delivered on that day. I see nothing in the case to create a doubt of the accuracy of his belief, or the justness of his statement.”</p> <p>The verdict was for plaintiff for $4112.50, and after judgment thereon, the defendant took this writ, assigning for error the admission of the testimony of McLean, the refusal of the points, and the portion of the charge above noted.</p>

<p>A court below cannot engraft on a decree of the Supreme Court an order of restitution not contained in said decree. If restitution be ordered it is a constituent part of the judgment, but if not found therein it cannot be made a part thereof by the lower court, whose duty is limited to enforcing the decree without any enlargement or change in its legal effect.</p>

<p>Error to the Court of Common Pleas of Chester county: Of January Term 1879, No. 193.</p> <p>This was a scire facias sur judgment issued April 13th 1878, at the suit of Richard Buffington to the use of Mary Mitchell and Sophia Mitchell, against Levis Bernard and Cyrus Hoopes. The defence was made by Hoopes alone. On the 1st day of April 1862, Levis Bernard and Cyrus Hoopes executed a joint bond with warrant of attorney to confess judgment to Richard Buffington for $2000. At the trial before Euthey, P. J., it appeared by the evidence that Hoopes was surety in the bond for Bernard. Judgment was entered on the bond on April 14th 1862. In the spring of 1866, Buffington demanded payment of the bond. Bernard at that time had just settled the estate of Andrew Mitchell, his brother-in-law, and had in his hands as administrator, &c., of said estate, $1600 belonging to Mary and Sophia Mitchell, the equitable plaintiffs, who were his sisters-in-law, and were living with him. He paid Buffington $400, and the arrears of interest, with his own funds, thus reducing the bond to $1600, and purchased for them, with the'$1600 in his hands, the bond from Buffington, and obtained from the latter an assignment to them, endorsed upon the bond. The assignment was not dated, but the evidence shows it to have been executed on, or about, the 28th of March 1866, which, as the receipt on the bond shows, was the day of the payment of the $400. The assignment was not marked to the use of the equitable plaintiffs on the record. On May 1st 1866, thirty-three days after the assignment, Buffington, without the knowledge of any of the parties interested, entered satisfaction upon the record of the judgment. On April 1st 1867, and annually thereafter until 1877, Bernard paid the interest on the bond to the equitable plaintiffs, in whose possession the bond remained. The lien of ‘the judgment expired April 14th 1867, and was never thereafter revived until January 11th 1877, when Bernard, by an amicable scire facias, signed only by himself, and without the knowledge of the equitable plaintiffs, revived it against himself, and the next day, January 12th 1877, made an assignment for the benefit of. his creditors. Hoopes alleged that some time in the year 1867, in searching for liens against his own property, he saw this entry of satisfaction upon the record.</p> <p>He further testified that he made inquiry of Bernard touching this entry, and that Bernard informed him that the bond was paid and satisfied. Bernard, on the contrary, testified that he never told Hoopes that the bond was satisfied, because he did not know that fact himself, until the day prior to his assignment for the benefit of creditors, in 1877; and that while he told Hoopes that Buffington was paid, he never informed him that the bond was paid.' On the 1st of April 1870, a judgment of $1150 was entered as a lien against Bernard’s property by Mary Pennock et al. On May 6th 1872, the Bank of Brandywine entered a judgment against Bernard for $3000. Other judgments were entered against Bernard between 1867 and 1877, which were satisfied before his assignment.</p> <p>In June 1875, the Bank of Brandywine called upon Bernard for payment of a portion of the $3000 judgment bond. The latter applied to Hoopes for a loan. Hoopes raised $1800 by a mortgage on his own property, paid off $1000 of the $3000 Bank of Brandy-wine judgment, took an assignment on the record of the judgment for that amount, and loaned the remaining $800 to Bernard, taking as security therefor, a judgment for $800 against Bernard’s property, which became the next lien to the Bank of Brandywine judgment. A short time previous to Bernard’s assignment in 1877, he confessed judgment to other parties. In the distribution of his assigned estate, the Pennock judgment was paid in full, as also the Bank of Brandywine judgment of $3000, with interest, and the sum of $93.66 was paid upon the $800 judgment. Hoopes’s loss on this transaction of 1875, was $706.84. A dividend on the $2000 judgment, of $168.58, was awarded to the equitable plaintiffs out of the personal estate of Bernard.</p> <p>Hoopes claimed to be relieved in this action, on the ground that he was a mere surety, and was misled by the entry of satisfaction into the belief that the debt was paid, and that he had been injured,</p> <p>First, by losing the benefit of the lien, which he might have had on Bernard’s property, if he had not rested under the belief that the debt.was paid; and</p> <p>Second, by incurring an additional liability of $1800 in 1875, for the benefit of Bernard, which he swears he would not have incurred, if he had known the Buffington bond was still outstanding, and upon which he lost $706.34 as above stated.</p> <p>The court, after setting forth, in substance, the foregoing facts, inter alia, charged:</p> <p>“ And upon them we charge you that the plaintiffs, having failed to procure the entry of the assignment on the record, or the marking of the judgment to their use, and thus allowed it to remain in the name of Mr. Buffington alone, and subject to his control, are responsible for his act in entering satisfaction upon it; and if Mr. Hoopes has satisfied you that he was thus misled, induced to believe that the debt was paid, he is entitled to relief against the plaintiffs’ claim, to the extent that he has shown you that he was injured thereby, or rather would be injured if the plaintiffs were allowed to recover their claim. * * * If you find he was misled, and that he could and would have secured the entire debt on Mr. Bernard’s property if he had not been so misled, then, if the plaintiffs were permitted to recover, the defendant’s injury ivould be equal to the entire debt, and in such case the plaintiffs should not, and must not, recover anything. The relief to which the defendant would be entitled under such circumstances would go to the entire extent of the plaintiffs’ claim. If you so find, you need go no further, but should render a verdict for the defendant.”</p> <p>The verdict was for defendant, when plaintiffs took this writ, and assigned for error the foregoing portion of the charge.</p>

<p>1. An insolvent corporation being indebted to its officers and directors, they executed the notes of the corporation in their own favor, and having obtained judgment by default, issued execution thereon. In the distribution ,of the proceeds of the sheriff’s sale of the personal property of the corporation, Held, that this conduct of the officers was a fraud in law, which gave them no preference over general creditors in the distribution.</p> <p>2. Under the provisions of the Act of April 7th 1870, sect. 1, where there is a sale of the personal property of an insolvent corporation, no preference is to be given to execution-creditors, but the distribution must be made as in cases of insolvency.</p> <p>3. In making distribution of the proceeds of a sheriff’s sale of the personal property of a corporation, it was agreed that the fund should be distributed, by a master, as if a bill in equity had been filed by one of the claimants against the rest. The report of the master was filed, and it was again referred to him for correction. Other creditors then asked to be made parties to the supposed bill, and the court allowed the amendment. Held, that this was not error.</p>

<p>Error to the Court of Common Pleas of Montgomery county: Of January Term 1879, No. 209.</p> <p>Assumpsit by De Forest Merriman against Edwin Moore, Margaret S. Kennedy and Jacob Highley, executors of John Kennedy, deceased, and Christopher Heebner, to recover the amount of a mortgage held by plaintiff on land taken by the defendants, under and subject to the payment of said mortgage, the lien of which had been discharged by a sheriff’s sale under a prior encumbrance. This was an appeal by defendants from the award of a board of arbitrators. The declaration averred that on November 2d 1875, Edwin R. Cochran and wife conveyed a certain lot of ground in the city of Philadelphia to defendants, under and subject to the payment of a certain mortgage of $800, given by one Milner to one Olay, of which the plaintiff was the legal holder, and that the defendants accepted the conveyance of said lot, and in consideration thereof promised the said Cochran and wife to pay to plaintiff the said mortgage, &c. There was also a count for money had and received. The defendants pleaded “non assumpserunt.” At the trial plaintiff proposed to prove by R. W. Hammel “ that he was the broker who effected the sale to Messrs. Heebner and Kennedy, and that it was expressly agreed between the parties to this deed that they were to assume the payment of both o'f the mortgages named in the deed, and that said mortgage formed part and parcel of the consideration-money.”</p> <p>The court sustained the objection to this offer. The court, Ross, P. J., directed the jury to find a special verdict, which they did, in substance, as follows : On November 2d 1875, Edwin R. Cochran and wife conveyed to John Kennedy and Christopher Heebner, certain lots for the sum of $9650. One of these lots was conveyed under and subject to the payment of two mortgages, one of which for $800 was executed by one Milner, the grantor of Cochran, and the other for $2550, by the grantor of Milnér. The deed to Cochran contained no “under and subject” clause, as to the mortgage for $800. The plaintiff came into possession of this latter mortgage by assignment. At March Term 1877, writs of scire facias were issued upon both mortgages. The- premises were sold by the sheriff for an amount insufficient to pay the first mortgage, and he stayed the writ on the one .for $800. The amount remaining due the plaintiff was $998. If the court was of opinion that plaintiff was entitled to recover, then the jury find that amount in his favor as damages; if, on the contrary, the court was of opinion that the action could not be maintained, then they find for defendants. The court entered judgment for defendants on this special verdict, when plaintiff took this writ and assigned for error this entry of judgment, and the exclusion of the evidence above set forth.</p>

<p>Error to the Court of Common Pleas of Chester county: Of January Term 1877, No. 96.</p> <p>Debt by William B. Hoopes to the use of Samuel H. Hoopes and others, administrators of Abraham Baily, deceased, against Horace A. Beale and others, members of Williamson Lodge, No. 309, A. T. M.</p> <p>The narr. contained four counts. The first was on a bond made on behalf and by the authority of defendants, by which they acknowledge themselves to be bound to plaintiffs in the sum of $20,000. The .other three were the common counts. The defendants pleaded non est factum, nil debit, payment with leave, &c.</p> <p>At the trial it appeared that this bond was given by Wells and other trustees of the lodge to William B. Hoopes for $10,000, secured by a mortgage on the real estate of the lodge, which mortgage was assigned to Abraham Baily. It also appeared that there was a prior mortgage of $4000 on the said premises, under which the real estate had been sold; that an auditor had been appointed .to distribute the fund arising from the sale; that in said distribution the $4000 was paid in full, and a portion of the $10,000. 'This suit was brought to recover the balance. The defendants ioffered to prove by Wells and other defendants, “that Mr. Hoopes Shad the money and proposed to lend it to the trustees on behalf of the lodge, and that at the time the trustees had some hesitancy .about putting their- names to the bond and mortgage and said they would not do it if there was to be any liability on any person; that the security was to be solely the real estate to be covered by the mortgage; that Mr. Hoopes said distinctly that he did not ask any personal security ; that all he asked was the real estate; that he was told more than once on the occasion by the trustees that they would not take the money if they were to be held liable for it, and that the transaction was then completed; this being on the same day the papers were executed and after the papers were prepared; that the money was received and the papers delivered in pursuance of the promise of Mr. Hoopes.”</p> <p>The plaintiffs objected both to the admissibility of the evidence proposed to be given, and to the competency of Wells and the other defendants to testify as to the matter proposed. The court, Butler, P. J., overruled the objections, and'permitted the witnesses to testify.</p> <p>The verdict was for defendants. The plaintiffs, inter alia, assigned for error the admission of the foregoing evidence.</p>

<p>1. Where, under the authority conferred by an Act of Assembly, a bank and stone wall ax-e ex-ected to pi-event an ovex-flow of water from a l'iver, damages cannot he recovered for an injury to a fishery occasioned thereby.</p> <p>2. Such damages are merely consequential, and the constitutional provision, that compensation shall be made to the owner of property taken for public use, does not apply to such damages.</p> <p>3. In a suit for damages for injury to a fishex-y, to px-event a recovery, it is not necessary to show that the fishery was entirely destroyed, but it is sufficient if it be shown that it was worthless.</p>

<p>Error to the Court of Common Pleas of Chester county: Of January Term 1878, No. 302.</p> <p>Debt by Margaret Reese against her son John Reese, on a note under seal for $993, drawn by defendant in favor of plaintiff.</p> <p>The case was brought into the court below on an appeal from an award of arbitrators, who had awarded the plaintiff the sum of $1997.04. The defendant filed an affidavit of defence in which he averred that the note was never executed by him. He also pleaded non est factum and set-off.</p> <p>At the trial, the defendant objected to the admission of the note in evidence, because no proof whatever had been offered of its execution by the defendant, whose plea of non, est factum required such proof to be presented before said note can be read or received in evidence. The court overruled the objection on the ground that the defendant had not given notice of his intention to impeach the execution of the note, in accordance with the following rule of court: “In all cases where the plaintiff’s cause of action or the defendant’s set-off, is founded in whole, or in part, on any bond, note or other instrument in writing, and stated specially in the pleadings, on notice given, fifteen days before the first day of the term, at which the cause is set down for trial, the same may. be given in evidence without proof of its execution, unless the opposite party shall, at least eight days before the first day of said term, give notice to the party offering such instrument, that he requires such proof to be produced.”</p> <p>The defendant testified that he had never made the note in suit; had never seen it, and never owed the money for which it was alleged to have been given. Several other witnesses testified that the plaintiff had stated in their presence that the defendant did not owe her anything.</p> <p>The defendant proposed to ask E. H. Rauch, an expert, “ In your judgment did the same hand execute the signature that executed the note?” The question was objected to, and the court sustained the objection.</p> <p>The same, witness who had examined the handwriting of the defendant shown to him before the trial,'with a view, as the witness supposed, of preparing for the trial, and who had never therefore seen the handwriting of the defendant, was asked whether in his opinion the signature to the note was in defendant’s handwriting. Objected to, and objection sustained.</p> <p>The plaintiff offered several witnesses in rebuttal, who testified they had seen the defendant sign the note. All of the note, except the signature, was admitted to be in a different handwriting from the signature.</p> <p>In the general charge, the court, Butler, P. J., alluding to the evidence that plaintiff had stated that defendant did not owe her anything, inter alia, said :</p> <p>“The question.here is, whether this note was forged. If the old lady said John owes me nothing but on book account, what weight should this testimony have ? What did she mean if she said that ? Did she mean that John owed her nothing but on book account ? Did she mean that he had not given her the note ? There is no pretence that he ever paid anything on it. Did she mean this claim arose out of book account? * * * You will look at the paper and judge whether it is a paper made since the conversation a year or months ago, or whether it is an old paper made years back. If that is so, then she could not have meant that she had no note at the time. [As she was talking to strangers, she was under no obligation to tell them the truth about her business.] If she did not mean to say she had not the note, did she mean to say the note she had was a forgery ? Do people ordinarily confess when they have papers purporting to be made by others, but are not, that they are forgeries ? Did she mean so to confess ? You will say. whether it is probable or not. If she made such statement before these witnesses, is it probable she would come here and swear to the contrary ? She swears here that the note is due her; has never been paid. If she made the statement to these witnesses that they understood her to make, as the defendant construes it, that the note is a forgery, it is inconsistent with her attitude since and here. If willing to make such confessions then, why not do so still ? Her son John, it may be inferred, is as near to her now as then, and if she made such confessions in his favor then, why change her position? I only suggest these thoughts; they arise naturally out of the evidence, and must be considered by you in reaching a correct conclusion. They are for you entirely. In respect to them the court does not mean to bias your minds in the least.</p> <p>“You will say what weight should be attached to Mr. Rauch’s testimony. He says, I doubt whether this signature to the note’is a natural signature; I am inclined to believe it is simulated. This witness does not know the handwriting of defendant, and therefore cannot testify whether this is his handwriting or not. He is an’ intelligent man, and if familiar with the handwriting of the defendant he might have given valuable testimony; but, unfortunately, he knows nothing of his handwriting. * * * Is that testimony of any value at all ? He never saw the man write; he does not base his judgment on that. Looking at the signature without knowing anything about the signature of the man, he says, I doubt whether I it is a natural hand; I incline to believe it is simulated. [I say to you, that to such testimony, in my judgment, little weight should be attached.] * * * The case presents questions of fact only; they are entirely for you to determine. You will consider them with care. * * * I submit the case to you.”</p> <p>Verdict for plaintiff for $1511.20. The defendant took this writ and assigned for error the admission of the note without proof of its execution, the exclusion of the above evidence offered by defendant and the foregoing portions of the charge in brackets.</p>

<p>Error to the Court of Common Pleas of Wayne county: Of January Term 1.878, No. 146.</p> <p>Scire facias to revive a judgment wherein Thomas Clark was plaintiff and Thales K. Varney and Joseph Shaffer defendants. The pleas were nul tiel-record, payment with leave, &c. The plea of nul tiel record was withdrawn and Shaffer filed a special plea averring, that he was surety for the defendant Varney on the note on which judgment was entered; that after the note became due he gave notice to plaintiff to collect the same of Varney, or he would no longer be bound as surety, and that plaintiff wholly neglected to collect said note from Varney, although such collection could then have been made: that plaintiff, for a valuable consideration, extended' the time of payment from 4th September 1872, to 4th September 1876, at the instance of Varney, and without the knowledge or consent of Shaffer; and that plaintiff had released lands of Varney from the lien of said judgment, without the knowledge or consent of Shaffer. The replication was a general denial of the matters alleged by the defendant.</p> <p>At the trial it appeared that on September 4th 1871, Clark loaned Varney $1000, for which the latter gave his judgment note payable one year from date with lawful interest. At the request of Varney, Shaffer signed the note as surety. Judgment was subsequently entered on the note to December Term 1871. At the time of the execution of the note, Varney paid Clark a bonus of $40. It appeared that the note was extended from year to year, and at each extension Varney paid Clark $100 ; one year’s interest at 10 per cent. On September 4th 1876, this action was brought to revive the judgment. On April 5th 1875, Clark also released a house and lot which Varney had sold to one Bloes for $350, from the lien of the judgment. Shaffer testified that he met Clark after the original note had become due and had notified him to collect it; that Varney had property and that if plaintiff did not collect it, defendant would not be responsible; that after that defendant did not know whether the note -was paid or not; that he supposed it was paid; that he never heard of any further time having been given by Clark, and that he first learned that the note had not been paid ~ by the service of the writ upon him in this case. The defendant was not corroborated in any of these statements and was contradicted in every particular by the plaintiff, who declared he scarcely knew the defendant and had never spoken a half dozen words to him ; that no conversation as that alleged occurred.</p> <p>The defendant submitted the following points, to which are appended the answers of the court, Waller, P. J.:</p> <p>1st. If Shaffer was a surety for Varney, and after the debt became due, gave notice to plaintiff to collect it, and he failed to do so, he (Shaffer) would no longer be bound as surety; Shaffer would be discharged in law if plaintiff neglected to collect the debt; and the burden of proof is on the plaintiff to show that it could not by due diligence have been collected from Varney after such notice was given.</p> <p>Ans. “In answering this point we first inclined to affirm it, leaving to you the question of the weight of evidence as to the notice; but on more deliberation, in view of the fact that our courts of law are leaning largely to doing equity, and considering that we have the naked, unsupported oath of the defendant, upon whom devolves the onus of sustaining his plea, as positively contradicted by the oath of the plaintiff, thus leaving the jury to guess which of the parties in interest may have told the truth, we have concluded to instruct you, and do so instruct you, that there is no sufficient evidence upon which to submit to you the question of notice. We therefore negative this point.”</p> <p>Sd. If Shaffer was a surety for Varney, and plaintiff, for any legal consideration, extended the time of payment beyond the period designated in the note on which judgment was entered, without Shaffer’s consent, Shaffer is in law discharged.</p> <p>Ans. “ This point is sound as a legal proposition, but, in its application here, we must instruct you that the first payment upon the judgment by Varney was six days after the maturity of the note, and was not a legal consideration for the extension of the time of payment. The payment of interest or part of the principal, or payment of a bonus, after the debt has become due, is not a valid consideration in law for an agreement to extend payment. We must therefore negative this point.”</p> <p>In the general charge, the court, inter alia, said:</p> <p>“And now you will take this case and ascertain, .under the instruction we have given you, what amount, if any, remains due to plaintiff' upon the judgment. You will see what amount has been paid, applying any excess over interest to the principal, year by year, to April 5th 1875, when you will deduct the value of the Rloes house and lot released, and ascertain the balance. All payments made after the 4th September 1872, were to be applied upon a debt due, and there was no time when the plaintiff could not after that have issued execution, or at which this defendant Shaffer could not have paid plaintiff, taken' assignment of the judgment,, and enforced collection.”</p> <p>The verdict was for plaintiff for $483.12. The defendant, after judgment thereon, took this writ, and assigned for error, inter alia, the answers to the foregoing points, and the portion of the charge noted.</p>

<p>Error to the Court of Common Pleas of Wayne county: Of January Term 1879, No. 247.</p> <p>Case stated, wherein George G. Waller and Henry M. Seely were plaintiffs, and the County of Wayne defendant, as follows:</p> <p>Mary E. Van Alstine was arrested and committed to the county jail of Wayne county, in August 1878, on the change of having murdered her husband by poisoning with strychnine, and at September Sessions of the Court of Oyer and Terminer, in said county, she was indicted for murder. Upon November 8th 1878, she presented her petition in writing to the judges of said court, setting forth her poverty and innocence, and praying that the court would assign counsel to defend her, and provide some means of paying the necessary expenses of preparing her case for trial. The plaintiffs, who are attorneys at law, were, thereupon, appointed by the court to defend Mrs. Van Alstine, the court at the same time recommending that the county of Wayne furnish her with one hundred and fifty dollars to meet her expenses and pay her counsel. On 9th December 1878, the trial of Mrs. Van Alstine having been continued at the request of the Commonwealth, and no funds having been appropriated by the county under the recommendation of the court for her benefit, Henry M. Seely, one of the counsel appointed to conduct her defence, presented to the court a petition, setting forth Mrs. Van Alstine’s confinement in jail, her poverty, the necessity of incurring expense in properly investigating the case and preparing the defence, and praying the court to direct the county commissioners to appropriate and pay over to Mrs. Van Alstine’s counsel the sum of one hundred and fifty dollars for the purpose of defraying such expense, which petition was granted by the court and served upon the county commissioners, who made answer that it would be impossible for them to comply with the order of the court.</p> <p>On .January 13th 1879, a new board of commissioners having come into office, a new order of court was made, directed to the commissioners, commanding them to appropriate and pay over unto Gr. Gr. Waller or Henry M. Seely, the sum of one hundred and fifty dollars to defray the necessary expenses of preparing Mrs. Van Alstine’s defence, or show cause on Saturday, the 18th of January, why an attachment should not issue. To this order the commissioners made answer, denying that the order of the court would protect them in the payment of money for such purpose, denying the right of the commissioners to pay such money, setting forth that the county was largely in debt and the treasury empty, and that the commissioners are of the opinion that they would render themselves personally liable for any moneys which they might appropriate for the purpose mentioned. This answer was adjudged insufficient by the court, and the matter was continued to the 24th of January, at 2 o’clock, with order that attachment should then issue if the money was not paid. On January 24th the matter was left open by consent of counsel in order that a case stated might be prepared and presented to the Court of Common Pleas to try the question of the obligation of the county in the premises. In the absence of any appropriation by the county commissioners, Mrs. Van Alstine being confined in jail without money or property, the said Waller and Seely proceeded, at their private expense, to prepare the defence of Mrs. Van Alstine, and expended in the investigation of the case, necessary to its proper presentation in court, the sum of one hundred and fifty dollars. At February Sessions 1879, of the Court of Oyer and Terminer in Wayne county, Mrs. Van Alstine was tried upon the said charge of murder, defended by these plaintiffs under appointments by the court, and acquitted by the jury-</p> <p>If the court shall be of the opinion that it was the duty of the county of Wayne, under the direction of the court, to furnish necessary means to enable the counsel assigned by the court to properly investigate the case and prepare the defence of Mrs. Van Alstine, it is agreed that such necessary expense actually incurred was one hundred and fifty dollars, and the court shall direct judgment in favor of the plaintiffs against the defendant for that sum.</p> <p>If the court shall be of the opinion that the counsel, undertaking - and conducting, under assignment by the court, the defence of Mrs. Van Alstine, are entitled to compensation from the county for services so rendered, they shall receive the sum of two hundred dollars, and the court shall direct judgment for the plaintiffs against the defendant for that sum in addition to the sum of one hundred and fifty dollars for expenses above stated.</p> <p>If the court shall be of the opinion that the county of Wayne is not liable to pay, either for the expense incurred or services rednered by counsel in the preparation and conduct of the defence of Mrs. Van Alstine, then judgment to be awarded for the defendant.</p> <p>The court, Waller, P. J., after argument, ordered “that the plaintiffs have judgment against the defendant for the sum of three hundred and fifty dollars, to wit: Two hundred dollars for services preparing and conducting the defence of Mrs. Mary E. Yan Alstine, under assignment by the court, and one hundred and fifty dollars for the expenses necessarily incurred in the preparation of such defence.”</p> <p>This order was assigned for error by defendant, who took this writ.</p>

195. Appeal by John Dean and Catherine his wife, in right qf the wife, a daughter and heir-at-law of Catherine Hoban, a lunatic, from a decree of the Common Pleas of Wayne county, on an application for the removal of H. C. Hand, committee of said lunatic.

<p>1. Where a tax collector, under a Avarrant duly issued by a borough council, directing the collection of a tax that had been properly levied by the borough, collects a tax from a person who it was subsequently shown had been improperly assessed by the assessor and county commissioners, he is not criminally liable therefor.</p> <p>2. The Act of May 27th 1841 was directed against the voluntary payment and receipt of taxes to evade the election laws, and not against the enforcement of such payment by legal process, and it Avill not support an indictment for the latter charge.</p>

<p>Where a street has been laid out and dedicated to public use, in an incorporated borough, Courts of Quarter Sessions have no jjower to vacate said street, as such power is vested in the municipal authorities alone.</p>

<p>Error to the Court of Common Pleas of Northampton county: Of January Term 1879, No. 253.</p> <p>Amicable action of assumpsit, by A. S. Knecht, administrator of Abram E. Eangboner, deceased, against the Mutual Life Insurance Company of New York, wherein the following case was stated for the opinion of the court:</p> <p>That in January 1868, the deceased applied to the defendant for a policy of insurance upon his life, the application, among other clauses, containing the following: “And the said Abram F. Fang-boner further declares that he is not now afflicted with any disease or disorder, and that he does not now, nor will he, practise any pernicious habit that obviously tends to the shortening of life;” that upon the faith of the conditions and promises in said application, the defendant issued a policy to deceased. Among the provisions of said policy was the following: “ If any of the statements or declarations made in the application for this policy, upon the faith of which this policy is issued, shall be found in any respect untrue, then and in every such case this policy shall be null and void.” That at the time of making the aforesaid application for insurance, the said Fangboner was of correct and temperate habits; that some years after the issuing of said policy he became addicted to the use of intoxicating drinks, from the immoderate use of which he was attacked with delirium tremens, from which he died; that the court shall be at liberty to make all legitimate and proper inferences of fact which flow from the foregoing facts, and that the case shall be considered and determined as upon a demurrer to evidence by the plaintiff; that if the court shall be of opinion that the defendant is liable to pay the whole amount insured by- said policy upon the life of the said Fangboner, then judgment to be entered in favor of the plaintiff for the sum of $1500, with interest from June 26th 1876. If not, then judgment to be entered for the defendant.</p> <p>The court, Meyers, P. J., entered judgment for the defendant, when the plaintiff took this writ, and assigned this action'-for error.</p>

<p>Error to the Court of Common Pleas of Northampton county: Of July Term 1878, No. 83.</p> <p>Case by Thomas L. McKeen against the Lehigh Yalley Railroad Company, for setting on fire and destroying plaintiff’s lumber, which plaintiff alleged was caused by the negligence of defendant.</p> <p>On the 4th of May 1870, the lumber in question was piled between the track of the Lehigh and Susquehanna Railroad and defendant’s road, at a point about one mile above White Haven, Luzerne county. The strip of land between said tracks, containing about three acres, on a portion of which this lumber was piled, belonged to the plaintiff. About one o’clock, or thereabouts, on the afternoon of the above-mentioned day, the lumber caught fire from some cause or other, and was totally destroyed. The allegation of the plaintiff was that between 12 and 1 o’clock v. M., a coal train drawn by engine No. 133, going northward on defendant’s road, passed the place where the lumber was piled; that the engine threw sparks of fire, which set fire to the brush, leaves, rubbish, and other combustible materials on both sides of the track; that the fire was transmitted to brush, leaves, briars, stumps, logs, -and other combustible materials on plaintiff’s land and from thence to his lumber; that every effort was made to extinguish the fire before it reached the lumber, but that they proved ineffectual owing to the high wind.</p> <p>Several witnesses testified that they had observed the character of the sparks thrown out by the engine in question both on the day of the fire and for sometime before; that the sparks were of unusual size, and that at different times they had set fire to boards, straw, a house and other combustible materials. Witnesses testified for the defendant that the -engine did not throw out sparks of the character described; that on the day of the fire the engine had a spark-arrester of the most improved kind, and that it was in good ' condition; that trains of the Lehigh and Susquehanna Railroad passed on that road near to the plaintiff’s lumber ; that on the day of the fire and for several days previous, there was fire in the stumps, brush and other combustible material in the immediate vicinity of the lumber pile, from some of which fires the lumber might have caught, especially as there was a strong wind blowing at the time and in the direction of the lumber pile.</p> <p>The defendant, inter alia, submitted the following points, to which are appended the answers of the court:</p> <p>4. There being no proof of any want of care on the part of the defendant in the character of the spark-arrester used on the locomotive which is alleged to have caused the fire that destroyed the plaintiff’s lumber, or that there was any want of care and vigilance in running the train, there can be no recovery in this action.</p> <p>Ans. “This point we cannot affirm. To do so we would have to take the case from the jury and direct a verdict in favor of the defendant. The concluding clause in the point is substantially correct, as there is little, if any, evidence that there was any want of care and vigilance in running the train at the time of the fire, but we cannot say, as alleged in the remaining part of the point, that there is no proof of any want of care on the part of the defendant in the character of the spark-arrester used in the locomotive which is alleged to have caused the fire that destroyed the plaintiff’s lumber, or that it was in a defective condition at the time of the fire. The proof submitted by the plaintiff bearing on the said questions of fact is of such a - character as to entitle it to be considered by the jury, whose province it is to determine said questions of fact from all the evidence in the case.” (Second assignment of error.)</p> <p>8. It is the undisputed fact that the plaintiff’s lumber was not fired by sparks from defendant’s locomotive coming in direct contact with it; it is also the undisputed fact that the fire originated on the land of another, from which it was transmitted to combustible material on the land of the plaintiff, from which latter material it was communicated to plaintiff’s lumber under the influence of an unusually high wind; in these circumstances the maxim causa próxima non remota peetatur becomes applicable, and the plaintiff cannot recover.</p> <p>Ans. “If the jury find that some combustible, material, though on the lands of another, were in the first instance set on fire by sparks or burning coal from defendant’s locomotive, and the. fire was transmitted to other combustible materials on lands of the plaintiff and by means .of the latter materials to the plaintiff’s lumber, in such case the jury must determine whether such facts constitute a continuous succession of events so linked together as to be a natural whole or whether the chain is so broken as to become independent, and the final result, to wit, the burning of plaintiff’s lumber cannot be said to be the natural and probable conseqenuce of the setting on fire the combustible materials in the first instance by the sparks or burning coal from defendant’s locomotive. The rule for determining what is.proximate cause is, that the injury must be the natural and probable consequence of the act in the first instance, and that it might and ought to have been foreseen under the circumstances.” (Fifth assignment.)</p> <p>10. Under all the testimony in the case there is not sufficient evidence to prove that the engine of the defendant occasioned the fire which destroyed the plaintiff’s lumber, and that it was by reason of any negligence on the part of the defendant, and, therefore, the verdict must be for the defendant.</p> <p>Ans. “Refused.” (Seventh assignment.)</p> <p>8. The court erred in answering as they did the defendant’s eleventh point, which was as follows:</p> <p>11. Under all the evidence in the cause the verdict must be for the defendant.</p> <p>Ans. “ Refused.” (Eighth assignment.)</p> <p>In the general charge, the court, Meyers, P. J., inter alia, said:</p> <p>“ The allegation of the plaintiff is that the sparks of fire thrown from the engine set fire to the combustible materials alongside of the defendant’s road on land adjoining the plaintiff’s strip of land on which the lumber was piled; that the fire was then transmitted to combustible materials, such as leaves, briars, brush, stumps and logs on said strip of land and by the force of a high wind to his lumber. The defendant contends that under such circumstances and conditions the throwing of sparks of fire by the engine was not the immediate or proximate cause of the injury to the plaintiff’s lumber. This is a question of fact for you.” (Ninth assignment.)</p> <p>Verdict for plaintiff for $9609.20. After judgment, defendant took this writ, among its assignments of error being those above noted.</p>

<p>Appeal from the Court of Common Pleas of Northampton county : Of January Term 1879, No. 39.</p> <p>Appeal of Edward H. Davis from the decree of the court dismissing his petition for the benefit of the insolvent laws.</p> <p>, Edward II. Davis,' the appellant, was committed to the jail of Northampton county on the 6th of May 1878, in default of giving security to comply with the order of the Court of Quarter Sessions of Northampton county, to pay a fine of <$ 1 to the Commonwealth for the use of the court, and to pay the sum of $4 per week for the support and maintenance of his wife and child, and the costs of prosecution, upon a complaint made under the 2d section of the Act of April 13th 1867.</p> <p>After he had been confined in the jail for three months, he made application to the Court of Common Pleas for his discharge, and gave bond to appear and present his petition at the next term for the benefit of the insolvent laws. He was therefore discharged from imprisonment by the court. At the next term, August 12th 1878, he presented his petition for the benefit of the insolvent laws, gave bond, and a time was fixed for the hearing. After hearing, the court, Meyers, P. J., refused to discharge him, in an opinion, saying:</p> <p>“ Edward H. Davis was committed to prison by the Court of Quarter Sessions, in default of giving security to comply with the order of said court, in a proceeding for the support and maintenance of his wife and children, under the 2d section of the Act of April 13th 1867. After an actual confinement in prison for three months, Davis made application for his discharge under the insolvent laws, and on his final petition, objection was made to his discharge on two grounds, viz.: 1. That the court has no jurisdiction to grant relief to persons in confinement under a sentence or order of a criminal court, except in the cases provided for by the 47th section of the Act of June 16th 1836. 2. That this application is not within the provisions of the 2d section of the same act, conferring jurisdiction in cases of insolvency.</p> <p>“ That Davis is not entitled to relief under the 47th section, is clear, as such relief is limited by said section to a person in confinement under a sentence or order, ‘ until he restore any stolen goods or chattels, or pay the value thereof; or in which any person may be confined for non-payment of any fine, or of the costs of prosecution ; or upon conviction of fornication and bastardy.’</p> <p>“ By the 1st section of the Act of March 26th 1814, every person was entitled to relief as an insolvent debtor, ‘ who shall be in actual confinement on mesne or final process for the recovery of money or damages, or who shall be confined for the non-performance of any decree or sentence for the payment of money.’ Under the act it was held, in the case of Greorge Texas, 1 Ash. 179, ‘that a person committed by the order of the Court of Quarter Sessions until he shall comply with a sentence directing him to pay weekly a certain sum of money for the support of his wife and child, and to give security for the performance of the order, is entitled to his discharge under the insolvent laws.’</p> <p>“The language of the clause in the 2d section of the Act of June 16th 1836, relative to insolvent debtors, differs very little from that in the 1st section of the Act of 1814. . The 2d section of the Act of 1836 confers jurisdiction in the case ‘of a person arrested or detained by virtue of any process issued in any civil suit or proceeding for the recovery of money or damages, or for the non performance of any decree or sentence for the payment of money.’</p> <p>“ The objection made to the discharge of Texas was that, in addition to the decree or sentence for the payment of money, the petitioner was required to do a collateral act, viz., to give security for his future performance of the sentence of the court. ' ‘ This incident,’ says Judge King, ‘cannot vary the nature of the principal obligation, as to make that a criminal offence which, without it, was but a pecuniary obligation.’</p> <p>“ In support of the position taken by Judge King, he relies upon the analogous case of a confinement under a sentence for fornication and bastardy, in which Judge Rush, as early as 1816, discharged McCulloch under the insolvent laws, though the act expressly extending the provision of the insolvent laws to such cases was not passed until the 11th of April 1826. Assuming that the court had jurisdiction under the insolvent laws prior to April 15th 1869, in a ease like the one under consideration, we are, however, met by the act of that date, which provides, ‘ that whenever the Court of Quarter Sessions of any county in the Commonwealth shall, under the 2d section of the act to which this is a supplement, commit the person complained of to the county prison, there to remain until he comply with their order or give security, &c., it shall be lawful for the said court, at any time after three months, if they shall be' satisfied of the inability of such person to comply with the said order and give such security to discharge him from imprisonment.’</p> <p>“It would seem, therefore, that the Act of 1869 intended to furnish a different remedy for his relief, instead of an additional one to that provided by the insolvent laws. While the act is entitled ‘ A supplement to the act for the relief of wives deserted by their husbands, in the county of Lancaster and other counties, approved the 27th day of February 1877,’ it was held in Keller v. Commonwealth, 21 P. F. Smith 413, that this act was intended as a supplement to the general act relative to desertions by husbands, &c., passed April 13th 1867. In proceedings for relief under the insolvent laws, the applicant is required, inter alia, to execute an assignment of all his estate, property and effects, &c., but under no circumstances is he required to satisfy the court in a case like this of his inability to comply with the order of the court and give such security.</p> <p>“ When the Act of 1869 was passed, the legislature must have intended that a mere surrender of his property, contemplated by the insolvent laws, ought not to entitle a person in confinement for deserting his wife and children to his discharge] hut that he should be required to satisfy the conscience of the court, after an actual confinement of three months, of his inability to comply with the order of the court and give such security.</p> <p>“ A person having little or no property, without the slightest inconvenience to himself, might procure his discharge under the insolvent laws; yet he might be in a position, by reason of his employment, social relations or otherwise, to be able to obtain the required security to comply with the order of the court. Under such circumstances, it seems reasonable that a person ought not to escape performance of his duty to support his wife and children, to prevent which I have no doubt was intended to be accomplished by the Act of 1869. For these reasons, the discharge of Edward H. Davis is withheld. Being of opinion, therefore, that the petitioner is not entitled to his discharge under the insolvent laws of this Commonwealth, we hereby order and decree that the petitioner’s application for discharge be dismissed.”</p> <p>Davis took this appeal, and alleged that the court erred in dismissing the petition and refusing to discharge him.</p>

•Error to the court of Common Pleas of Monroe county: Of July Term 1878. No. 149. Trespass on the case by George D. Napheys and wife against the Delaware, Lackawanna and Western Railroad Company, to recover damages for injuries to the wife of plaintiff, alleged to have been caused by the negligence of defendant. The facts were, in substance as follows: The plaintiff and his wife were passengers on a train of defendants.

<p>Appeal from the Court of Common Pleas of Northampton county: sitting in equity: Of January Term 1879, No. 175.</p> <p>Henry Fulmer was the appellant and plaintiff below. Peter Uhler was defendant and his executors were appellees.</p> <p>The pleadings were a bill to settle a partnership account, which partnership the answer admitted existed and had been dissolved. Nothing material to the controversy arose out of the pleadings.</p> <p>These parties and a third person, whose interest they bought out, agreed to go into partnership to build a furnace and make pig iron.</p> <p>They agreed upon the mode of dividing the profits and the losses. The contract was in writing and there was no pretence on either side that it did not contain the contract between them.</p> <p>The plaintiff contended that the profits were divisible in proportion to the contributions to capital. The defendant contended that the profits were divisible in the proportion of their interests in the capital whether contributed or not.</p> <p>The contract, after covenanting to form the partnership and contribute equally to the requisite expense of building and working, stipulated: “And the parties shall be entitled * * * to the profits * * * in the several proportions which their several interests bear to the total amount then paid in.” The plaintiff contended that this meant in the proportions of the amounts they shall have actually contributed at the times the profits were earned. The master, to whom the cause was referred, directed the account to be taken, dividing the profits in the proportions of the contributions to the building and working. The court, however, held that if the contributions were equalized before the profits were accurately ascertained and known, that was time enough and saved the default.</p> <p>The decree was made' by His Honor Judge Dreher, of the Forty-third Judicial District, holding the Court of Common Pleas in the Third District.</p>

<p>Error to the' Court of Common Pleas of Oarbon county: Of January Term 1879, No. 203.</p> <p>Scire facias sur mechanics’ lien issued by W. C. Wren against E. B. & S. W. Ely.</p> <p>On February 12th 1876, William O. Wren filed a mechanics’ lien under the Act of February 17th 1858, Pamph L. 29, the provisions of which were extended to the county of Carbon by the Act of April 4th 1868. The Act of 1858 provides as follows:</p> <p>“That the several provisions of an act, entititled ‘An act relating to the-liens of mechanics and others upon buildings,’ approved the 16th of June 1836, and the several supplements thereto, are hereby extended to all improvements, engines, pumps, machinery, screens and fixtures erected or put up by tenants of leased estates, on land of others, in the counties of Luzerne and Schuylkill, and to all mechanics, machinists and material men doing work or furnishing the articles or materials therefor: provided, that the lien hereby created shall extend only to the interest of the tenant or tenants, lessee or lessees therein, and to the improvements, engines, pumps, machinery, screens and fixtures erected, repaired or put up by the mechanics, machinists, persons or material men entering liens thereon.”</p> <p>The claim filed by Wren was “for a debt due to him for work done and material furnished by him for and about the erection and construction, and upon the credit of improvements, engines, pumps, machinery, screens and fixtures put up or erected by E. B. Ely & Co., tenants of leased estate on land of another in the said county of Carbon.”</p> <p>He claimed a lien under the provisions of the above act against said improvements, engines, pumps, machinery, screens and fixtures erected or put upon the aforesaid leasehold estate of E. B. Ely & Co. and the interest of said E. B. Ely & Co., tenants, in and to the said improvements, engines, pumps, machinery, screens and fixtures, and their interests in and to so much other improvements, engines, pumps, machinery, screens, fixtures, &c., immediately adjacent thereto, as may be necessary for the ordinary and useful purposes thereof.</p> <p>Appended to the claim was a schedule entitled, “List of machinery on premises of E. B. Ely & Co.” Certain articles of machinery in this list had the name of the claimant written opposite to them, and in a few instances there was added to the name a memorandum of articles and materials.</p> <p>On April 30th 1877, judgment was entered against the defendants for want of an affidavit of defence, the amount of the debt to be ascertained by the prothonotary. On the same day the prothonotary ascertained said amount to be $7473.99. On this judgment a fi. fa. issued, which was afterwards stayed. In May 1877, a levari facias issued, attached to which was a copy of the list of the machinery contained in the claim. On June 12th 1877, the defendants presented a petition, sustained by an affidavit, to open the judgment and stay the levari facias, on which a rule nisi was granted. This rule was subsequently discharged, and on August 6th 1877, judgment was entered for plaintiffs in the sum of $6037.05. On this judgment an alias levari facias issued, attached to which was a list of machinery, but in said list was included only a part of the machinery contained in the original claim.</p> <p>The defendants took this writ and assigned for error the entry of the original judgment “against defendants,” for want.of an affidavit of defence, and the subsequent entry of judgment for a reduced amount.</p>

<p>Error to the Court of Common Pleas of Northampton county: Of January Term 1879, No. 240.</p> <p>On December 27th 1873, S. P. Bush & Son, house-carpenters, filed a mechanics’ lien against Edward Able, owner or reputed owner, and contractor, and a building known as Abie’s Opera House, in the borough of Easton. Accompanying the claim, and made a part thereof, was the following bill of particulars:</p> <p>“ 1873.</p> <p>June 28.</p> <p>To building Opera House in the Borough of Easton, Northampton county, Pennsylvania, and furnishing the said materials for the same, including excavations, stone, mason-work, marble, marble-work, bricks, brick-work, iron-work, carpenter-work, lumber, slate and roofing, plastering, plastering materials, hardware, painting, painting materials, glass, glazing, sky-lights, gas-fitting, plumbing, seats, upholstering, upholstering materials, oil-cloth, turning, carving, mouldings, tin-work, scenery, drop-curtain, cordage and cartage, as per agreement, dated June 14th 1872, and the supplement thereto.</p> <p>§53.644.77</p> <p>BILL FOR EXTRA WORK ANB MATERIALS.</p> <p>1873.</p> <p>Eeb. 19. Bill of coal and carting same . . . $389.50</p> <p>Extra carting by Bercaw .... 18.00</p> <p>Jacob Rafferty, mason-work . . . 2.50</p> <p>P. Correll, lime bill .. . . ... 43.93</p> <p>Bill of Phillipsburg Iron Co. 794.30</p> <p>Three feet of brick-work over ball-room, extra, at $15.50 per M...... 369.76</p> <p>60 yards of plastering to same . . . 21.00</p> <p>3 window frames on Wagener’s line . . 80.00</p> <p>Extra door on clothing store . . . 30.00</p> <p>Large windows on Wagener’s line . . 53.00</p> <p>24 lights of glass, 18 x 34, at §1.08 . . 25.92</p> <p>Trimming, fitting and hanging sash . . $20.00</p> <p>Sash-weights, cord and hardware . . 11.95</p> <p>Painting and glazing ..... 15.00</p> <p>Carpenter-work and lumber, sky-lights in floor, &c., setting glass .... 50.00</p> <p>Glass in floor......130.00</p> <p>&c., &e., &c.</p> <p>EXTRA WORK ON STAGE.</p> <p>23 days by G. Householder, making traps, extra scenery, set pieces and paint frames and getting stage ready for night performances, at $3.75 .... 1 day by Householder, 2 days by men, at $5.00 63 hours night work...... 72 papers of tacks, at 8 cts..... 70 feet poplar bds. for profiles, at 7 cts. 3 lbs. of nails, at 7 cts. .... 1 gross of one and a half-inch screws . 2 papers two-inch clout nails 9 sheaves for traps, &e. .... 15 counter weights for traps and 6 for paint frames . ■ 10 lbs. of nails, at 7 cts. . ” . Extra boarding for Householder for-extratime Cordage for traps and paint frame Smith work by W. Thatcher 1151 ft. of lumber for traps and paint frame, at 7 cts. ...... Philip Stern, paper muslin .... 700 yards plastering on stage, at 35 cts. T. M. Lesher & Bro’s extra bill . Plush for rolls...... Extra glass in bulks..... Architect’s charges and fees 86.25 15.00 31.50 5.76 4.90 21 75 60 9.00 43.25 70 19.60 12.44 . 47.78 80.57 35.49 245.00 3701.12 100.00 101.00— 7944.40 3617.65 Aggregate price $65,306.82</p> <p>The work was commenced on or about the 14th day of June 1872, and finished on the 28th day of June 1878, on which day the last was done, in which time said materials also were furnished.” On May 20 th 1876, on petition of the Merchants’ Bank of Easton, a lien creditor, the court granted a rule to show cause why the lien should not be stricken off. On July 1st 1878, after argument, the court (Meyers, P. J.), made the rule absolute, in an opinion, inter alia, saying:</p> <p>“ The question then, is, have the plaintiffs complied in respect to said extra work and materials,'with the Act of 1826. This act provides, inter alia, ‘that every claim must set forth the amount or sums claimed to be due, and the nature and kind of the work done, or the kind and amount of materials furnished, and the time when the materials were furnished, or the work was done, as the case may be.’ On reading the statute, it would seem that the meaning of the language would scarcely admit of any doubt that nothing less than a full, precise and distinct statement of the nature or kind of work done, and the kind and amount of materials furnished, and the year, month and date when so done and furnished, would be a full compliance with the statute. On the question of the construction the books are full of cases. Many of them are apparently conflicting, and some of them difficult, if not impossible to be reconciled with each other. It must be observed, however, that some of the decisions are under the Act of 1845; others are raised on the trial, such trial being held a waiver of all defects; others on a motion to strike off the lien, or on demurrer, and still others on a special Act of Assembly applicable only to certain localities. I have examined with care, probably every Pennsylvania case having any direct or remote bearing on the question. * * * In some of them, reasons are given at considerable length and with great force as to the necessity for such certainty, viz.: to individuate the work and materials, by description, quantity and dates, so as to protect the owners of property and others interested against error and imposition. Sergeant, J., in Witman v. Walker, 9 W. & S. 186, in speaking of this provision of the statute, says: ‘ that the amount or sum claimed to be due and the nature or kind of- work done, or the kind and amount of materials furnished, and the time when the materials were furnished or the work was done, are, or ought to be within the peculiar knowledge of the claimant from his books or otherwise, and must be furnished by him when filing his claim. When dispute arises they are essential to the owner of the building, the purchaser and lien creditor to enable them to trace out the truth of the claim and guard against error or imposition. * * * Where, as often is the ease, a contractor carries on several dispersed buildings and work is done and materials furnished for them by the same mechanic or material-man, the enumeration in the claim of these items furnishes the best means of ascertaining how far the particular building in question is liable.’ This language is specially applicable to this lien. Considering that here is a special contract for $58,644.77 for work done and materials furnished, and while in the process of its erection extra work is done and materials furnished in and about the erection of the same building for $11,562.05, it will be seen at a glance how necessary it is that there should be strict compliance with the statute in specifying, as to said extra work and materials, the nature and kind of said work, the kind and amount' of materials, and the time the same was done and furnished. If in an ordinary case the law requires this to be done to prevent error or imposition, how much more is it necessary where a special contract for work and materials is in process of erection concurrently with' extra work done and materials furnished outside of the special contract in the erection of the same building ? How easily could a claimant introduce in his bill for extra work and materials, such work and materials which properly belongs to the special contract, if not compelled to keep an accurate account of the extra work and materials, the nature, kind and amount thereof and the time when done and furnished. Even that might fail to protect the oAvner and parties interested against error and imposition, but it is the best which the law-affords. It is true that many of the items as to kind and amount are sufficiently certain, Avhile others are manifestly defective and deficient, as for example, the item ‘ Bill Phillipsburg Iron Co. $794.30;’ ‘T. M. Lesher & Bro., Extra Bill, $3701.12;’ ‘Architect’s charges and fees, $3617.65,’ and others. There is no reason why the plaintiffs could not have complied with these simple requirements as to kind, quality, amount and time. Having failed to do so, we have come to the conclusion, somewhat doubtingly as to the law, and may also add reluctantly (as such claims are generally deemed meritorious), that so much of the lien relating to ‘extra work and materials,’ must be stricken from the record.”</p> <p>- The claimants took this writ, assigning for error the order of the court making the rule absolute.</p>

<p>Error to the Court of Common Pleas of Northampton county: Of January Term 1879. No. 232.</p> <p>Assumpsit by Matthew H. Griffith, James Roberts and J. Milton Butler, partners, trading as Griffith, Roberts & Butler, against Theodore R. Sitgreaves, to recover $2903.68, the amount of seven promissory notes, of which defendant was the accommodation endorser for Robert C. Pyle, the maker. The defendant pleaded non-assumpsit. A jury trial was dispensed with, and the case was submitted to the court, Meyers, P. J., under the provisions of the Reference Law of April 22d 1874.</p> <p>The court, inter alia, found the following facts :</p> <p>“That Robert C. Pyle, on the 9th of January 1874, at the Metropolitan Hotel, in the city of New York, signed as maker seven promissory notes, dated New York, January 9th 1874, payable to the order of Theodore R. Sitgreaves, at the First National Bank, Easton, Pa.; said notes being respectively for $316.12 at four months; $318.92 at five months; $642.42 at six months; $322.52 at seven months; $324.32 at eight months; $652.36 at nine months, and $327.92 at ten months. That on the same day Pyle forwarded said notes by mail, enclosed in a letter addressed to Theodore R. Sitgreaves, Easton, Pa., defendant in this action, requesting him to endorse the same and return them to him by mail at said hotel. That on the 11th of January 1874, which was on Sunday, Pyle, while at said hotel, received by mail a letter from Sitgreaves inclosing said notes endorsed by him. That on the same day, viz.: January 11th 1874, Pyle delivered said notes to Matthew H. Griffith, one of the members of the firm of Griffith, Roberts & Butler, plaintiffs in this action. That the consideration of said notes was a then subsisting indebtedness of Pyle to said plaintiffs for a bill of ready-made clothing purchased by him in May 1873, or thereabouts. The said notes were duly protested at maturity.”</p> <p>“ That at the time said notes were signed and delivered by said Pyle to Matthew H. Griffith, one of the plaintiffs, the said Pyle was under duress of imprisonment and duress per minas, by reason of acts done and threats made by said Griffith, and the general conduct of said Griffith, and one Thomas Wheeler, commencing in the forenoon of the 9th of January and terminating in the afternoon of the 11th of January 1874. That the said notes were signed and delivered as aforesaid, under and by reason of said duress. That there is no evidence in this case from which the court can find as a fact that Pyle after the making and delivery of said notes, agreed Or promised to pay said notes, made any declarations or done any act by which he either waived the right or estopped himself or Sitgreaves to set up said duress as a defence in an action on said notes either against himself or Sitgreaves.</p> <p>The court having found the fact that the notes were signed and delivered by Pyle to the plaintiffs under and by reason of duress of imprisonment and duress per minas, held, that the same were absolutely void as against Pyle as maker and Sitgreaves as endorser in the hands of a person who was a party to said duress, or of a holder who had notice thereof before he received said notes. And that in an action on said notes by the plaintiffs against Sitgreaves, it was competent for the latter to set up as a defence the duress of Pyle, and especially so where the fact was found as in this case, that the duress was effected through the agency of one of the plaintiffs in this action.</p> <p>Exceptions were filed to this decision which the court overruled, when the plaintiffs took this writ, and, inter alia, made the following assignments of error:</p> <p>5. The court erred in its answer to defendant’s third point, which was as follows: The testimony establishing that duress, both of imprisonment and per minas, was exercised by Griffith upon Pyle in obtaining the notes in suit, the delivery of them to the plaintiffs under such circumstances conferred no title to them.</p> <p>Ans. “Affirmed.”</p> <p>6. In finding that the notes were given under duress.</p> <p>7. In not finding all the facts bearing upon the question of duress, and in not stating them “separately and distinctly.”</p> <p>8. In their answer to defendant’s fourth point, which point was as follows: It is an abuse of legal process to make use of it for the purpose of coercing a person to enter into obligations or to part with property under apprehension of its use.</p> <p>Ans. “Affirmed.”</p> <p>9. In their answer to defendant’s fifth point, which point was as follows: If the notes in suit were void against Pyle by reason of duress exercised upon him, they created no obligation upon the part of Sitgreaves as endorser.</p> <p>Ans. “ Affirmed.”</p> <p>10. In finding that Sitgreaves can defend against the payment of the notes because of the duress practised upon Pyle.</p> <p>11. In their answer to defendant’s sixth point, -which point was as follows: If the notes in suit w'ere void for duress of Pyle there are no facts in the case which operate to re-create a legal obligation on his part to pay the notes.</p> <p>Ans. “Affirmed.”</p> <p>12. In finding that Pyle would not be estopped by his conduct from setting up his alleged duress as a defence to the notes, and in finding that Sitgreaves is not likewise estopped by Pyle’s conduct.</p>

<p>1. The act'of February 19 th 1849, regulating railroad companies, provides that where subscriptions are made to the capital stock of a railway company, previous to the issue of letters patent, no subscription shall be valid, unless the party making the same shall, at the time of subscribing, pay $5 on each and every share for the use of the company. Held, that giving a noté for a subscription was not a payment within the meaning of the law. Held, further, that such a subscriber, who had taken no other part in the affairs of the company, was not estopped from setting up the absence of such payment as a defence to an action of assumpsit for the subscription.</p> <p>2. A subscription to the stock of a public corporation, made before letters patent are issued and an organization effected, must be considered absolute and unqualified, and any condition attached thereto is void. Commissioners have no authority to raise conditional subscriptions. If they do, the sub scription is valid and binding, and the condition null and void.</p>

24. Appeal of William B. Wiley, guardian of the minor children of Andrew Stewart, deceased, from the decree of the court making distribution of the assigned estate of Henry Andrews.

<p>Appeal from the Court of Common Pleas of Lancaster county: Of May Term 1879, No. 6.</p> <p>Appeal of Henry D. Bausman and Diller P. Herr, assignees, from the decree of the court, in the distribution of the assigned estate of Henry Lorah and wife.</p> <p>Henry Lorah and wife, executed and delivered a deed of voluntary assignment for the benefit of creditors, on the 7th day of April 1876, to Henry D. Bausman and Diller P. Herr. The property assigned, consisted of various articles of personal property, appraised at $89, the rent of a farm appraised at $259, and the real estate appraised at $8,297.50, which was afterwards sold for $6620. Henry Lorah had bought this farm, subject to a mortgage of $5500, from John A. Hohman, to whom he gave a judgment for the purchase-money.</p> <p>In the said deed of assignment to Henry D. Bausman and Diller P. Herr, Henry Lorah and wife expressly reserved and excepted the benefit of the Exemption Act of April 9th 1849. The assignees paid to Lorah the $300 reserved in his deed of assignment, and in the account they filed, claimed credit for such payment in full, as no specific articles had been claimed by or appraised to the assignor. To this item of credit, John A. Hohman filed exceptions. An auditor was appointed to pass upon the exceptions and make distribution, who in his report allowed a credit for said payment as much as the personal property amounted to, including the rent, less the proportionate share of the expenses, but surcharged said assignees with the balance of the $300, and disallowed any payment on said exemption from the money realized on the sale of the real estate.</p> <p>Exceptions were filed to the auditor’s report by the assignees, because of this surcharge, and by John A. Hohman, because the auditor had allowed any credit for said payment. The exceptions being argued, the courf, Patterson, J., surcharged the assignees with the whole amount of the $300 claimed in their account, less' $39, the appraised value of the said several articles of personal property.</p> <p>From this decree the assignees took this appeal.</p>

<p>1. In an action for damages for the obstruction of an alley, it is competent for the defendant to prove, by way of mitigation of damages, that it was not the plaintiff’s only means of access to the rear of his property.</p> <p>2. Twenty-one years adverse user of an easement gives rise to the presumption of a grant; that there was a gate maintained across an alley is of no consequence, if the plaintiff and those under whom he claimed, used it whenever he chose to do so.</p> <p>3. That the defendant or some one of his predecessors in title, gave notice, at a sheriff’s sale of the property, that he claimed the exclusive right and ownership of the alley in question, could not affect the plaintiff, if he were not present when such notice was given. Assertion of title is not enough ; it must, to be effective, be accompanied with some act which, at least for the time being, would prevent the use of the easement.</p> <p>4. If the use of the way by the plaintiff was merely a permissive use, and the jury, from the evidence as it appears in the case, might so have found, then he could not claim the easement as of right, for, in that event, no presumption of grant could arise from the more lapse of time. In order to establish such right, the user must he adverse, not permissive.</p>

28. Assumpsit by Thomas Furniss against Henry N. Breneman, on the following check: “Lancaster, Pa., June 21st 1875. Farmers’ National Bank of Lancaster, pay to H. N. Breneman, or order, one thousand dollars. $1000. ' H. S. Kendig.- Endorsed: II. N. Breneman.” . Payments at different times were also endorsed, amounting in the aggregate to $832.33. Defendant pleaded non assumpsit,' payment with leave.

173. A number of citizens of East Donegal township, Lancaster county, petitioned the Court of Quarter Sessions to appoint viewers to lay out a road as designated in said petition. After due public notice of the time and place of meeting, the viewers appointed in pursuance of said petition met and laid out a road. Their report was filed and confirmed nisi.

<p>Error to the' Court of Common Pleas of Lancaster county: Of May Term 1879, No. 153.</p> <p>Debt by the Washington Borough School District against Cyrus, John and Benjamin Shartzer, on the official bond of Cyrus Shartzer, as the treasurer of said school district. Defendants pleaded payment, payment with leave, &c.</p> <p>Cyrus Shartzer, one of the defendants below, was elected treasurer of said school district at the spring.election of 1873, for the term of one year, and in the month of September, of the same year, he assumed the duties of his office and gave his bond with John Shartzer and Benjamin Shartzer, who are also defendants in this suit, as his security, to one Eli Roberts, then president of said school board, in the sum of $2300 for the faithful performance of the duties of his office, in accordance with the terms prescribed by the Act of 8th day of May 1854, and its supplements. Prior to his election as treasurer in 1873, he had been annually elected and re-elected, and served as treasurer of said school district from 1868 to 1873 respectively. During that time the borough auditors were either not elected and sworn, or neglected to settle annually the accounts of said treasurer, as required by law.</p> <p>On April 6th 1876, one John Parker and Martin Bitner, assuming themselves to be the legally elected auditors of said borough of Washington, for the years 1875 and 1876, but never having’been sworn, nor having filed their respective oaths with the town clerk as such, as required by law, made up an account or statement, in which they struck a balance in favor of the school district and against the said treasurer of $631.90. This statement comprised a-period of four years and four several terms of office, from July 5th 1871 to June 1874, and at the bottom of this statement appeared the following words under their hands and seals: “We, the undersigned, auditors of Washington borough, Lancaster county, Pennsylvania, have examined the accounts of Cyrus Shartzer, ex-treasurer of Washington school district, and the above is a correct statement to the best of our knowledge.”</p> <p>This suit was then brought by the said school district against said treasurer and his security for the said sum of $631.90, with interest, on the official bond of the treasurer for the year 1873.</p> <p>At the trial, before Patterson, J., the plaintiff offered in evidence the bond of said Cyrus Shartzer, which the court admitted under objection. (First assignment of error.)</p> <p>The plaintiff’s counsel offered in evidence the report of the auditors of Washington borough, dated April 6th 1876, showing the account as made up and what balance is due and owing by the treasurer.</p> <p>Defendants objected to this report until it was proven by the auditors, or those who pretended to have been auditors, denying that those gentlemen were the auditors. Offer admitted. (Second assignment of error.)</p> <p>The court refused to allow the defendants on cross-examination to ask John Parker “ When tv ere you elected an auditor?” (Third assignment.) Also, “Were you a'sworn auditor at the time this account was audited ?” (Fourth assignment.) The defendants also offered to prove that the parties whose names are appended as auditors, to the alleged report dated April 6th 1876, were not auditors duly qualified to perforin the duties of the office, that they never had been elected as such or taken the oath of office prescribed by the Act of Assembly, or caused the same to be recorded with the town clerk as required by laAV. Plaintiff objected and offer overruled. (Fifth assignment.)</p> <p>Also to prove that Cyrus [Shartzer, the defendant in this case, was first elected treasurer in the spring of 1868, was re-elected in 1869 and in 1870, and continued in office by re-election from year to year up until June 1874; that on the 5th day of June 1871, the period at Avhich the pretended auditors commenced the settlement of his account, the Washington Borough School District was indebted, to the defendant in the sum of $1216.78; that that item of $1216.78 forms no part of the present pretended report, and therefore is still due to this defendant from this plaintiff as a set-off against its claim of $631.90, under our defalcation plea; to be followed by proof that we asked the auditors to audit the years 1868, 1869 and 1870, Avhich they refused to do. Objected to and offer overruled. (Sixth assignment.)</p> <p>The court instructed the jury to find a verdict for plaintiff for $631.90, Avith interest; that under the law and the evidence the plaintiff Avas entitled to this verdict, and they should so render it. (Seventh assignment.) Verdict accordingly, when defendants took this writ assigning the foregoing errors.</p>

<p>.1. The principle that the consideration of a negotiable note cannot be inquired into in the case of a holder for value, does not apply to the case of such paper made by a lunatic.</p> <p>2. In a suit by the endorser of a promissory note made by a lunatic, the latter or his committee may defend, on the ground that the endorser had knowledge of the maker’s lunacy, or that the note was obtained by fraud or without proper consideration..</p> <p>3. Where the endorser of a promissory has been notified that he will be required to prove the consideration paid by him for the note, and he takes the stand to prove that he is a bona fide holder, it is proper on cross-examination, to ask such questions as will tend to discover whether the endorser knew that the note was originally obtained without proper consideration.</p> <p>4. The defendant lunatic may also prove that he received no consideration for the note; that it was given pending proceedings in lunacy, and that plaintiff admitted that defendant had not received value for the note.</p> <p>5. Per Paxson, J. — -A Us pendens is undoubtedly constructive notice in questions of title and property, but that it should be so as to a man’s mental condition is much to be doubted.</p>

140. Appeal of Granville Hartman from the decree of the Orphans’ Court of York county, making absolute the rule granted at the instance of Adam J. Glossbrenner, to show cause why the exceptions to his account as trustee of the fund bequeathed by John Hartman, deceased, for the use of J. Hamilton Hartman-and others, should not be stricken off. The material facts are stated in the opinion of this court.

166. Appeal of Leonard Bachler from the order of the court dismissing his appeal from the assessment of damages sustained by him by reason of the extension of East Walnut street, in'the city of Lancaster.

<p>The attorney óf W. sold the one-half of a printing establishment and newspaper to C., who at the time of the sale owned the other half. C. placed his name at the head of the paper as sole owner and assumed exclusive possession and control thereof. The sale was made on condition that a part of the purchase-money should be paid in cash and the balance in instalments. Before these instalments were all paid the property was sold at sheriff’s sale and bought by M., a creditor of C. No claim to the property was made by W. at the time of the sale. There was some evidence that O. had agreed to rescind the contract of sale, which 0..denied. The latter also at the time of the sale informed M. that he owned the property. W. filed a bill in equity to compel-M. to account. Held, that it would not lie.</p> <p>Held, further, that under .these circumstances the creditors of C. would be led to believe that C.’s title was absolute and unconditional and that W. was estopped from setting up the conditions of the sale to defeat that title in a contest with bona fide creditors. Over v. Blackstone, 8 W. & S. 71, followed.</p>

<p>3, The purchaser of land at sheriff’s sale is entitled to the growing grain thereon which had not been severed before a sale. If there has been a severance it does not pass to him who purchases the land subsequent to the severance.</p> <p>2. The plaintiffs conveyed a farm to defendant and took a judgment for part of the purchase-money. They issued a fi. fa. thereon and levied on the real and personal estate. Defendant claimed his exemption and elected to take the growing grain, which was duly appraised in the presence of one of plaintiffs. The land- was subsequently purchased by the plaintiffs, who claimed that the growing grain passed to them. Held, that the appraisement under these circumstances was a severance of the grain and that plaintiffs were not entitled thereto.</p>

30: Covenant by John Wenger against the Farmers’ Mutual Insurance Company, on a policy of fire insurance. Defendant pleaded non est factum, covenants performed, absque hoc. It appeared that in 1870, the company issued a policy to Wenger on certain premises in Lancaster county; All the assessments of Wenger were paid up to May 1876.

36. Appeal of George Tomlinson from the decree of the court, distributing the balance in the hands of the assignee of George Heiss and wife. On January 17th 1873, the judgment bond of George Heiss to Lewis E. Harple for $1000, was entered in the Common Pleas of Lancaster county, and became a lien upon his real estate. On April 7th 1877, Heiss made an assignment to Tomlinson for the benefit of creditors.

<p>Appeal from the decree of the Court of Common Pleas of Lancaster county: Of May Term 1878, No. 132. In Equity.</p> <p>Bill in equity filed June 25th 1875 by Clement B. Grubb against Alfred Bates Grubb. The bill averred in substance, that, in 1845 the plaintiff and his brother Edward were co-tenants in fee of Mount Hope Furnace, in Lancaster county, and also, with others, co-tenants of the “ Cornwall Ore-banks ”; that at that time Edward Grubb and defendant, A. Bates Grubb, were copartners in the manufacture of iron at Mount Hope Furnace; that in 1845 plaintiff and defendant agreed that plaintiff’s individual half of Mount Hope should be conveyed to defendant, “ together also with the right, title and interest, so far as the said Alfred Bates Grubb’s right under this conveyance in the said Mount Hope Furnace is interested and concerned, of them, the said Clement B. Grubb and Mary Ann Grubb, his wife, to raise, dig up and carry away, for the use and advantage of said furnace, iron ore out of and from * * * the ‘ Cornwall Ore-banks ’ * * * for the purpose only of procuring ore for the said Mount Hope Furnace * * * ; ” that Edward Grubb and defendant operated the furnace as ^copartners until the death of Edward, in 1867, during which period the ore was obtained from said banks; that in 1870 the heirs of Edward began certain proceedings in partition against defendant, the result of which was that the defendant, in April 1874, became the sole owner of said Mount Hope Furnace; that the defendant recently asserted a right to take ore from said banks, without limit, instead of a moiety thereof. The bill further alleged that this claim to a full supply instead of a moiety was contrary to the agreement of purchase and the construction of the deed; that plaintiff owned one-twelfth of said Cornwall banks, and that he had articles of agreement with his co-proprietors, under which the ore taken by defendant was considered as taken by plaintiff, and was at his exclusive cost; that the wrong of taking the ore being continuous and recurring would cause a multiplicity of suits, against which relief could be had in equity alone, and it therefore prayed that it should be decreed that defendant’s right is to take but one-half of the ore used at Mount Hope: that if the words of the deed of ■ 1845 did not clearly confine the defendant’s right to a half supply, the deed should be reformed; that defendant be decreed to account to the proprietors of Cornwall for one-half of the ore; that defendant be decreed to submit to such method of determining the rights involved as is necessary to protect plaintiff, and in the meantime that he be enjoined from acting under his grant; that plaintiff should have such further relief as would prevent a surcharge of the grant made or intended to be made.</p> <p>The defendant in his answer set forth a title to show that the one-sixth interest in Cornwall banks was a part of Mount Hope estate and they were considered as one estate, and that by virtue of the defendant’s ownership of said estate he had a right to an unlimited supply of ore from said banks, and that the deed of 1845 contemplated a right to a full supply of ore therefrom. The answer further averred that the matters alleged in the plaintiff’s bill were not such.as entitled plaintiff to relief in equity.</p> <p>The case was referred to George Nauman, Esq., as examiner and master, who upon the question of jurisdiction, reported that “as no fraud, accident or mistake has been proved, as no evidence has been laid before him -which would call for the cancellation or reformation of any paper, and as there are no mutual or complicated accounts between the parties, the jurisdiction of a court of equity, in this case, is to say the least, doubtful.” He further reported that believing “so far as he can ascertain it from the language of the deed and the circumstances of the parties at the time of making it, that the intention was that a right should be granted to a full supply of ore, and that this right should be annexed to the ownership of the individual half of Mount Hope Furnace, he recommends that the bill should be dismissed.” Both plaintiff and defendant excepted to this report. The court, Livingston, P. J., delivering the opinion, sustained the exceptions of the plaintiff and entered a decree that the “interest and right of defendant to take ore from said Cornwall ore banks is to the extent of a moiety only” commensurate with the interest of Mount Hope Furnace, and that defendant should account for the ore taken in excess of the amount he was thus entitled to take. The amount then due was ascertained and reported by a master, and the court entered a decree that said amount should be paid by defendant to plaintiff.</p> <p>On the question of jurisdiction the court said: “By the Act of June 16th 1836, sect. 18, the legislature has declared that the Supreme Court and the several courts of common pleas of this Commonwealth should have the jurisdiction and powers of a court of chancery, with reference to the matters therein enumerated and specified. And that the Supreme Court when sitting in banc, in the city of Philadelphia, and the Court of Common Pleas for said city and county, shall, besides the powers thereinbefore enumerated, have the power and jurisdiction of Courts of Chancery, so far as relates to—</p> <p>“ ‘ The prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.’ And by the Act of February 14th 3 857, the legislature declares, ‘ that the several Courts of Common Pleas of this Commonwealth, in addition to the powers and jurisdiction heretofore possessed and exercised, shall have the same chancery powers and jurisdictions -which are now by law vested in the Court of Common Pleas or District Court of the city and county of Philadelphia,’ and provides for an appeal from their decrees to the Supreme Court.</p> <p>“ It may, therefore, be said, as decided in Denny v. Brunson, 5 Casey 382, &c., ‘ that by the 18th section of the Act of 16th of June 1836, the equity jurisdiction of the courts therein specified, and those to which it has been extended by subsequent legislation, extends to’ ‘the prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals.’.</p> <p>“And waste, as.an act contrary to law, is within the purview of the legislation of this Commonwealth on the equitable powers of the courts, and the jurisdiction conferred expressly extends to its prevention or restraint, and all the Courts of Common Pleas in the state now possess, in addition to their writs of estrepement, the power to restrain and stop waste by injunction.</p> <p>“ In Scheetz and Stout’s Appeal, 11 Casey 88, &c., it is decided that ‘the Courts of Common Pleas have jurisdiction in equity to restrain by injunction repeated acts of trespass upon the legal rights of a complainant.’</p> <p>“ In Unangst’s Appeal, 5 P. F. Smith 128, it w.as held that a corporation obtaining a concession to enter, on condition of refraining from a particular injury, in its nature irreparable and not readily estimated in damages, forfeits its license, when it violates the condition, and should be restrained till it does equity.</p> <p>“And in Stoekdale v. Ullery, 1 Wright 486, it was held that the courts, in granting injunctions, are not restricted to acts ‘ contrary to law,’ but may exercise this power to restrain acts contrary to equity also; equity being so much a part of the law of Pennsylvania as that the word ‘ law’ often means both law and equity, or either.</p> <p>“ The equity powers and jurisdiction of courts being no longer confined to cases of accident, mistake, fraud, the cancellation or reformation of papers, or to complicated accounts between parties, but having, as we have seen, been extended and made to apply to the ‘ prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community or the rights of individuals, we think the powers and jurisdiction of a court of equity are sufficiently broad and comprehensive to extend to and embrace the controversy or case as here developed.”</p> <p>From a decree in accord with this opinion the defendant took this appeal, alleging, inter alia, that the court erred in holding that the case was within the jurisdiction of-a court of equity.</p>

No 135. Appeal by George Rigler and Henry Gingrich, administrators of Felix Gingrich, deceased, from the decree of the court making distribution of the proceeds of the sheriff’s sale of the real estate of Godlieb Light. This case involved the distribution of the proceeds of a sheriff’s sale of real estate, made upon a mortgage given by Godlieb Light to Felix Gingrich, to secure the payment of the balance of purchase-money due on the land sold under process against him.

85. This was a case stated for the opinion of the court, w’herein Aaron Rose and Catharine, his wife, for the use of said wife, were plaintiffs, and Abram Latshaw and others defendants.

of Cumberland county: Of May Term 1878, No. 191. Debt by the Third National Bank of Philadelphia, upon the following promissory note, against the signers thereof, the President and Directors of the Farmers’ and Mechanics’ Bank of Shippenshurg, Pennsylvania: $20,000. Shippensbui-g, Pa., Nov. 22d 187S. One day after date we jointly and. severally promise to pay to the order of J. Hiram Hubley, cashier, twenty thousand dollars, without defalcation, value received.

190! Debt by Christopher Daley and Mary Ann, his wife, against Adam Koons, wherein a case was stated for the opinion of the court, in substance as follows: Samuel Westafer died in October 1872. By his- will, dated April -20th 1871, he gave estates in fee to four of his children.

34. ' Case by Thomas J. Croyle against Jacob J. Moses, for the price of a horse. Plaintiff purchased from defendant a bay horse,-for which he paid $110 cash. Soon after he discovered that said horste was a cribber or wind-sucker and immediately returned him to the defendant and demanded his money. Defendant refused to refund the money, and the following day returned the horse to plaintiff, who declined to take ‘him, and the horse was subsequently sold as a stray.

103. Debt by R. Bruce Petriken and J. S. Miller against Joseph S Cornman. On March 14th 1874, plaintiffs endorsed a promissory note drawn' by defendant, payable to their order, for his accommodation, which they were compelled to pay. On August 2d 1875, they commenced an action against him by attachment under the Act of 17th March 1869: Pamph. L. 8; Purd.

<p>Where there is a regular, formal forfeiture of a recognisance, the liability of the recognisors is absolutely fixed thereby, and relief therefrom must be sought by petition to the court, to respite the cognisance for cause to be shown,, under the provisions of the Act of 1783.</p>

<p>1. Although legal process may, by its malicious use, give rise to a cause of action, yet in such a case there must not only be a malicious use but there must be no reasonable or probable cause for such process, since if there be such cause, the intention goes for nothing.</p> <p>2. As. a writ of estrepement is purely preventive, and neither arrests the person nor seizes the goods of a defendant, the lawful use of such process cannot be the foundation of an action.</p>

<p>Error to the Court of Common Pleas of Perry county: Of May Term 1879, No. 149.</p> <p>Debt by the Peoples’ Freight Railway Company against Henry Rinesmith, to recover instalments on a subscription to stock of said company.</p> <p>Subscriptions to the amount of $100,000 had been asked from Perry county, and of this amouut defendant subscribed ten shares. This subscription he alleged was made upon the express condition, stated by the agent of the company at the time of the subscription, that the amount subscribed was not to be paid, unless the. whole contingent of Perry county was subscribed. Only $62,000 were subscribed in the county, and very little work was done upon the road. In the belief that the whole $100,000 had been subscribed, defendant paid some of the instalments on his subscription, but ascertaining that the whole amount was not subscribed,, he declined to pay the rest, when this suit was brought to compel their payment.</p> <p>At the trial, before Junkin, P. J., one of the plaintiff’s -witnesses, who had solicited defendant’s subscription, testified, on cross-examination, that he had made no representation to defendant that his subscription was not binding, unless $100,000 -were subscribed in the county, nor stated that defendant could keep the book until he knew that amount -was subscribed; and further, that witness did not make a similar statement in the presence of one Sheibley.</p> <p>The defendant then proposed to call Sheibley, to prove that the witness had made such a statement in Sheibley’s presence, although made before defendant actually did subscribe. The court rejected the offer, saying:</p> <p>“ The defendant having sworn himself that he refused to subscribe on the offer made by Milliken to him and the witness Sheibley, and that he did not hold the offer under consideration, the matter was then and there ended, and this becomes immaterial, and the offer to contradict Milliken is within the rule that immaterial evidence developed by cross-examination cannot be contradicted.”</p> <p>The verdict was for plaintiff for $300, when defendant took this writ, his fifth assignment of error being the exclusion of the above offer</p>

<p>Error to the Court of Common Pleas of Cumberland county: Of May Term 1879, No. 186.</p> <p>Covenant by Louis H. Koeh against J. Dunkel, upon a covenant of general warranty contained in a deed from defendant to plaintiff, to recover damages for a failure of title as to a certain quantity of the land thereby conveyed.</p> <p>By agreement the cause was submitted to the court, Herman, P. J., without a jury, who found the following facts :</p> <p>“ Jacob Dunkel, the defendant, being the owner, in fee-simple, of a farm containing sixty-two acres and six perches of improved land, situate a short distance west of Carlisle, in North and South Middleton townships, sold and conveyed to John Cameron, on the 23d of November 1867, by deed of that date, duly executed and delivered, a small strip of land off from the northern side of this farm, containing three acres and thirty-eight perches. Cameron immediately, upon the date of his purchase and deed to him of this strip of land, went into possession of it, a line fence, cutting it off from the body of the farm, was at once put up by him and Dunkel, and the same year he (Cameron) built a house on it, and-he and his tenants have been in the actual possession and occupancy of it ever since. Dunkel, after this sale and conveyance to Cameron, continued in the ownership and occupancy of the remaining fifty-eight acres and one.hundred and twenty-eight perches of his farm, farming and having it farmed, until the 21st of May 1878, and on that day he articled with Koch, the plaintiff, for the sale of this land to him, for the gross price of $9000. The article of agreement entered into between them on that day describes the land sold as, “ a farm containing sixty acres more or less, situate in North Middleton township, Cumberland county, and now in the occupancy of said Dunkel, bounded on north by S. Williams, on east by W. J. Shearer, south by--Brandon, and on west by George Bosler,” and stipulates, that Koch shall “pay for the same, $9000, on the execution of the deed, the said Dunkel to deliver possession to said Koch between the tenth and twelfth days of June 1878, at which time the deed will be executed and delivered.” The land thus sold to Koch, was the land that Dunkel was then in the occupancy of, the farm which actually contained fifty-eight acres and one hundred and twenty-eight perches, and was that part of sixty-two acres and six perches which remained to Dunkel after the sale and conveyance of the three acres and thirty-eight perches to Cameron. In pursuance of this sale to Koch, a deed was drawn up by Mr. Corn-man, who acted, in doing so, as counsel for both Dunkel and Koch, and this deed was executed, and delivered by' Dunkel and wife to Koch on the 11th of June 1878, and at the same time, possession was given to Koch of these fifty-eight acres and one hundred twenty-eight perches of land, and thereupon Koch paid to Dunkel the sum of $9000, the full amount of the purchase-money, previously agreed upon, and Dunkel receipted therefor in the deed. Although Koch really purchased no more than the fifty-eight acres and one hundred and twenty-eight acres of land which Dunkel was in the occupancy of on the 21st of May 1878, and agreed to pay for no more, was put into the possession of no more and paid for no more, yet the courses and distances in the description of the land, set forth in the deed, takes in and embraces the three acres and thirty-eight perches of land which had previously been conveyed to Cameron, but the-calls for the adjoiners call for Cameron as an adjoiner on the northern side at the place where the Cameron land lies. The description in the deed further describes the land conveyed as containing sixty-two acres and sixteen perches, strict measure. The deed contains a covenant of general warranty, and the usual words, “grant, bargain and sell.”</p> <p>This action was upon the covenants in the deed, to recover for the deficiency of three acres and thirty-eight perches.</p> <p>The defendant offered in evidence the articles of agreement of May 21st 1878, which were objected to on the ground that the agreement was merged in the subsequent deed. The court overruled the objection. The court also decided that the plaintiff could not recover. Exceptions were filed to this decision, which the court dismissed, when plaintiff took this writ, and alleged that the court erred in admitting in evidence the articles of agreement, and in deciding in favor of defendant.</p>

<p>Error to the Court-of Common Pleas of Perry county: Of May Term 1879, No. 148.</p> <p>Debt by the Peoples’ Freight Railway Company against William McClure, to recover the amount of certain instalments of a subscription to the stock of said company.</p> <p>The plaintiff corporation was formed from the consolidation of three railroads. The agreement to consolidate was effected between the companies about the. 17th of November 1878, but was not filed in the office of the Secretary of the Commonwealth until December 13th 1873. The defendant subscribed for his stock after the consolidation, but before the agreement therefor was filed with the secretary.</p> <p>At the trial, before Junkin, P. J., the defendant made the following offers:</p> <p>To prove by himself and others present when said subscription was obtained, that agents of plaintiff came to him with the subscription book, and said to defendant that he had horses and plenty of hands about him; that if he would subscribe, there would be plenty of opportunity for him to furnish materials and labor to pay all his subscription in that way, and that he need not pay any money on his subscription; that defendant then subscribed, upon those terms and under those conditions; that without such terms and conditions he would not have subscribed at all; that no opportunity was offered him to pay his said subscription according to the said conditions of his contract, nor has he been called upon to furnish either labor or materials for said road.</p> <p>Also; to prove that if the road had been constructed as plaintiff proposed, it would have passed within two miles of his residence, and the opportunity would then have been offered to pay his subscription in kind; that the work was commenced about four miles' below him and progressed in an easterly direction, so as to carry the grading of the road further from him and not toward him; that the whole line of one route was given out by contract to one Bivins, the first and nearest ten miles of the road on the very day the articles of consolidation were filed, and the remainder of the route in November 1874; so that the plaintiff rendered it impossible to receive payment according to the conditional contract; that neither president, secretary nor any acting director lived -within the county of Perry, to whom tender could be made. And this for the purpose of showing that defendant was excused from making the tender, even if the tender had otherwise been necessary.</p> <p>Both of these offers the court rejected.</p> <p>The defendant also submitted the following points, which the court refused:</p> <p>1. The alleged subscription of defendant having been obtained before the articles of’ consolidation were filed in the office of the Secretary of the Commonwealth, and therefore before the corporation plaintiff had any legal existence, the same is void for want of parties, and tho verdict should be for the defendant.</p> <p>2. The alleged subscription having been obtained before the corporation plaintiff had any legal existence, and before it had obtained any rights, property or franchises, by virtue of the filing of the articles of consolidation, according to the requirement of the Act of Assembly relating thereto, the same is void for want of considation, and the verdict should be for the defendant.</p> <p>The verdict was for plaintiff for $200. After judgment defendant took this writ, his first and second assignments being the foregoing offers of evidence respectively, and his third and fourth, the refusal of the above points.</p>

<p>Error to the Court of Common Pleas of Cumberland county: Of May Term 1879, No. 96.</p> <p>Debt by the ■ Commonwealth *to the use of Philip Zeigler, committee of David Bife, a lunatic, against George Strock, co-obligor with Moses Bricker, in a joint and several bond, conditioned for the faithful performance by Bricker of the duties of committee of said lunatic. The condition of the bond is recited in the opinion of this court.</p> <p>The narr., in the usual form, declares that “ George Strock, together with Moses Bricker, on the 27th August 1862, by their writing obligatory, with their seal sealed and filed in the office of the prothonotary of the Court of Common Pleas in and for the county of Cumberland, which said writing obligatory is herewith produced and exhibited to the court, and is of the tenor and effect following, to wit: “Know all men,” &c. Then follows a bond in the usual form for $5000, conditioned for the faithful performance by Bricker of “ all and singular the duties relating to” his trust as committee of David Bife, a lunatic. Then follow recitals of proceedings, and averments of fact to show that Bricker was unfaithful; that he was dismissed; that Philip Zeigler was appointed in his place; that an account had been previously filed, which on final settlement showed a balance in the hands of Bricker, as committee, of $3932.71; that he was ordered to pay, and did not pay the said sum, “nor any part thereof, although often requested,” &c., whereby the said bond “became forfeited,” &c., concluding, in the usual form, with the averment of demand on Strock, and his refusal; and the whole signed by plaintiff’s attorney.</p> <p>Buies of court in Cumberland county provided, inter alia, as follows:</p> <p>§ 14. In actions on recognisances, judgments, mortgages, liens of mechanics and material men, municipal claims, transcripts from the Orphans’ Court, policies of insurance, book accounts, bonds, bills, notes and other instruments of writing for the payment of money, * * * if the plaintiff shall, ten days before the return day of the writ, with his declaration or statement, when necessary, * * * file an affidavit stating the amount he verily believes to be due from the defendant, together with a copy of the book entries or instrument upon which the suit is brought, * * * he shall be entitled to judgment, &c.</p> <p>§ 15. In lieu of a copy of the instrument required by the preceding rule to be filed by the plaintiff, when the action is upon a record of this court, or upon a mortgage, mechanic’s lien, or recognisance in the Orphans’ Court, Oyer and Terminer or Quarter Sessions, it shall be sufficient if the plaintiff file, with his praecipe or otherwise a reference to the place where such record or other instrument may be readily found by the defendant, should he desire an inspection of the same. In any such case plaintiff’s affidavit is not required.</p> <p>No affidavit was attached to the declaration stating the amount which the plaintiff really believed to be due, was filed as required by this rule, nor was any reference made to the place where the bond could be found. No copy of the bond was filed, but it was set forth as an exact copy in the declaration and at the argument of the rule, the bond was produced to prove that the recitals were copied literally from it. The Act of Assembly of February 26th 1872, “relating to the administration of justice in Cumberland county:” Purd. Dig. 1165, Pamph. L. 6, provides that in all actions to be brought in the Court of Common Pleas, on bills, •notes, bonds and other instruments of writing for the payment of money, * * * before judgment shall be taken for want of an affidavit of defence, the plaintiff must file “with his statement or declaration * * * a copy of the instrument of writing,” &c. The court, Herman, P. J., entered judgment for the plaintiff, for want of an affidavit of defence. A rule was afterwards taken, to strike off this judgment because entered improvidently, which the court discharged in an opinion, saying:</p> <p>“ It appears that there is set forth in the declaration in this case an exact copy of the instrument of writing sued on, and which was signed by Moses Bricker and the defendant, George Strock. This the plaintiff verified on the argument by producing the bond itself on which the action is founded. It is true, that it is made a part of the declaration, and is set forth as being, in ‘ tenor and effect, following, to wit: ’ But then follows an exact copy of the bond, which it is declared was signed and sealed by Moses Bricker and George Strock, the defendant. Their signatures are not copied to the copied writing, but then it is so clearly stated that they did sign and seal the bond, that the omission to copy them is immaterial. I do not see how the defendant, after reading the declaration, could have suspected that it did not contain an exact copy of the instrument of writing which he had executed with Moses Bricker, or had any doubt in his mind as to the identical instrument of writing upon which the action was founded. I think the plaintiff had done everything that was necessary under our affidavit of defence law to impose upon the defendant the duty of'filing an affidavit of defence, and the defendant having failed to file such an affidavit on or before the second Saturday succeeding the return-day of the writ, was in default, and the plaintiff was entitled to his judgment.”</p> <p>The defendant took this writ, and assigned for error the discharge of the rule.</p>

<p>1. Where the condition of a policy of insurance is unambiguous and | reasonable, the insured cannot escape compliance with its terms, by showing good faith and an honest although unsuccessful effort to comply therewith. | f</p> <p>2. A policy of insurance provided, that if without the written consent of the company the insured premises should become vacant or cease to be occupied, the policy should be void. The proofs of loss in regard to a certain property insured showed that it had been vacant a few days before the fire by which it was destroyed. In an action upon the policy the insured offered to show that the tenant had vacated the premises without the insured’s knowledge, and that he had at once endeavored to obtain* another tenant, and notified the company’s agent. Held, affirming the court below, that the question of the good faith of the insured could not enter into the casé, as the obligation to keep the building insured by the terms of the policy was absolute.</p>

<p>Error to the Court of Common Pleas of Perry county: Of May Term 1879, No. 81.</p> <p>Case by A. J. Burd against the Pennsylvania Canal Company.</p> <p>The declaration set forth that the Pennsylvania Canal Company, being the owner of the main line of the canal from Columbia to Wikesbarre, and having the authority to charge tolls on boats navigating their canal, are bound to keep the same filled with water, and to use due and reasonable care, skill and diligence in the management thereof, and that the defendants neglected to do so, but permitted the same to get out of order, and suffered logs and other debris to accumulate in the channel, and that in consequence thereof, when the water was drawn off, on the 14th day of May 1876, by order of the supervisor, in the sixteen-mile level, in Luzerne county, plaintiff’s boat, “The Two Brothers,” loaded with stone-coal, sunk upon a log in the bottom of the canal, and was destroyed; further, the plaintiff charges, that the'said boat was tied up at a place designated by the agent of the defendants.</p> <p>The defendants pleaded, not guilty.</p> <p>It appeared, that about 10th May 1876, the plaintiff’s boat, loaded with one hundred and ten tons of coal, himself the master, was coming down the sixteen-mile level, and, when opposite Shickshinny, stopped, in consequence of a sunken boat considerably lower down. Other 'boats were also stopped in front of plaintiff’s. It became necessary to draw off the water from this level, in order to raise the obstructing sunken boat. Orders were given to the boats in front of plaintiff’s to move to a certain point below, but the plaintiff was directed to remain where he was, place his boat in the centre of the canal, throw out lines to berme and tow-path from bow and stern, and await the withdrawal of the water. The boat was an old one. Where she laid there were eight feet of water, and this particular section of the canal had been thoroughly cleaned and repaired the previous winter.</p> <p>After the water had been taken out of the level, it was discovered that a green hemlock log, about, thirty feet long, about twelve inches at the butt and six inches at the top, was lying in the bottom of the deep place where the plaintiff’s boat had settled. This log could not be seen from the banks of the canal. Its existence was not known to the defendants. It was not there when the water was let into the division in the spring of 1876. No knowledge of it was brought home to the defendants, but, on the contrary, all the canal employees testified that it was there without their knowledge, and that the canal was daily inspected and watched, and the utmost diligence exercised to keep the works in good, safe and proper condition.</p> <p>After the plaintiff’s evidence was in, the defendants moved for a nonsuit, on the ground that no negligence was disclosed thereby, which was refused.</p> <p>The plaintiff, inter alia, submitted the following point: •</p> <p>1. That if the jury believe that when the water was drawn from the canal of defendant the boat of plaintiff rested upon the log spoken of by all the witnesses in such a manner as that they are satisfied that the plaintiff’s boat was injured by the resting upon the log, and thereby sunk, and that no other examination was made on part of defendant than that detailed by defendant’s witnesses, to wit: observation from the tow-path at a distance of from twenty to twenty-five feet, immediately before the water was let into the canal, and with the knowledge on the part of defendant, that during the entire winter, or from the close of navigation in the fall of 1875, water to the depth of two feet nine inches was in that part of the level running along and by Shickshinny, where the boat of plaintiff lay, then this would be such negligence on part of defendant, as makes her liable in damages to thé value of the plaintiff’s boat.</p> <p>The court, Jun'kin, P. J., answered as follows: “ If the jury believe that the log sunk the boat, that this log had floated there on the surface of the water in the canal until waterlogged, it would be strong evidence of a want of care on the part of the company from which you could and should infer negligence.</p> <p>“But we cannot say that the inspection of the canal by the company in the spring of 1876, in the manner indicated in this point, was insufficient, or amounted to negligence in the company. Such inspection under the authority cited in the charge (Insurance Co. v. Delaware Canal Co., 10 Bosworth 180,) seems sufficient, if it was carefully done; if carelessly done, so that the log if visible to the eye was overlooked, then it was negligence, and the company would be liable.”</p> <p>The defendants submitted the following point, to which is subjoined the answer of the court:</p> <p>The fact of the plaintiff’s boat having been injured by the log sunken in the bottom of the canal so as not to be visible or known to the defendants’ employees, even should the jury so believe, does not show such negligence as to make the defendants responsible for the injury, and your verdict should be for the defendants.</p> <p>Ans. “We answer, that we affirm this point except in this: that the company would be liable notwithstanding, if this sunken log floated to its place on the surface of the canal until waterlogged, because of the fact of its floating long enough to become so, could not have escaped the most ordinary vigilance. The company would also be liable if its employees were negligent in failing to see the log if it was there and visible in the spring before the water was in.”</p> <p>In the general charge the court, inter alia, said: “ When the plaintiff was directed by the foreman and watcher to stand fast and go down to the bed of the canal where his boat then lay, he was not only bound to obey the order, but had the right to believe that the location was safe, and if in fact his boat was sunk in settling on a log, there would be a prima facie ease of negligence made out against the company, because a log unlike a stone would float along before it would sink, and if a floating log escaped the attention of the company for any considerable time, long enough, to become waterlogged and sink, the fact of negligence could hardly be denied. * * * In determining this question, should it be found by you that this log floated on the surface of the canal at any point and was not taken.out, but permitted to float until it sunk, then it would be negligence in the company, and the plaintiff should recover the value of his boat.”</p> <p>The verdict was for plaintiff for $200, and after judgment the defendants took this writ, assigning for error the answers to. the above points, and the portion of the charge noted.</p>

123. Trespass de bonis asportatis by George A. Zacharias against Joseph Totton, sheriff, and the Harrisburg National Bank. As appears in the abstract of proceedings a joint appearance was entered for the defendants, and they jointly pleaded “not guilty.” Afterwards, when the case ivas called for trial, they severally, by leave of court, filed special pleas, both of which are, however, as to the averments of fact in them, identical. The narr. is in the usual form.

<p>Error to the Court of Common Pleas of Cumberland county: Of May Term 1879, No. 89.</p> <p>Ejectment by Maud Maglaughlin and Wilmer K. Maglaughlin, by their guardian, William A. Coffey, against Anne Harlan and David Sipe for two lots in Carlisle, Pennsylvania.</p> <p>On March 31st 1859, John Mell conveyed by a deed a lot of ground to Isabella'Noble, wife of John B. Noble, for $50. This deed was duly recorded August 27th 1859. To the same grantee William Blair conveyed, by deed, a lot of ground on March 20th 1865, for $200, which deed was recorded March 28th 1868. On March 5th 1869, John B. Noble made a note payable to Christ. Kindler, upon which suit was brought, and judgment recovered for $129.47, with interest from 22d September 1869. A fi. fa. and vend. ex. issued upon this judgment and the above-mentioned lots were sold, as the property of John B. Noble, in 1870, to Charles E. Maglaughlin, whose heirs bring this ejectment. Isabella Noble, dying about 28th June 1875, letters of administration on her estate were issued to J. J. Good, who, under an order of the Orphans’ Court of Cumberland county, sold the above lots, October 31st 1877, to David Sipe, one of the defendants.</p> <p>At the trial, before Herman, P. J., the plaintiff gave evidence tending to show that John B. Noble paid for these lots, and directed the name of his wife to be used as that'of the grantee therein. There was also evidence that, when the first deed was made, Noble w'as indebted to different parties, in the sums of $3.37, and $60, payment of which was not shown; that, in the year 1859, after the Mell deed was made, debts were contracted to the following amounts: May 10th, $18, May 20th, $45, November 29th, $39 (reduced .October 14th 1861, to' $35.49); in the year 1860, as follows: January 13th, $60, which was paid; February 22d, $21.92, likewise paid; judgment April 14th 1860, for $5 penalty, for use of scales at suit of Borough of Carlisle; and in 1862, May 14th, $4.02, which was paid; another, originally $65, but, 26th November 1862, reduced to $6.50.</p> <p>As evidence of fraudulent intent on the part of Noble in having these conveyances made to his wife, one Foote testified that Noble “ told me before the war, in 1859, that he was in a good bit of trouble, and that he was going to put what he had, his property, over into Belle’s hands. He called his wife Belle.”</p> <p>Among the points submitted by the defendants were the following to which are appended the answers of the court:</p> <p>1. To render a voluntary conveyance void as to subsequent creditors, it must appear that it was made in contemplation of future indebtedness, and until this was shown the plaintiffs could not call upon the defendants to prove the consideration for the conveyances to Isabella Noble through whom he derives title.</p> <p>Ans. “This would be so if, at the time of the voluntary conveyance, no debts of the grantor existed, the recovery of which would be thereby delayed, hindered or defeated. Where there are debts existing at the time, and the conveyance has delayed, hindered or defeated their recovery, this circumstance raises a suspicion of fraud from which an intent to defraud subsequent as well as existing creditors may be inferred.”</p> <p>2. Of the deeds under which defendants claim, one was made 31st March 1859, and recorded 27th August 1859., and the other was made 20th March 1865, and recorded 23d March 1868, while the debt, which was the foundation of the sheriff’s sale, 'was not contracted until 5th March 1869, nearly ten years after first conveyance, and nearly three years after second conveyance, and there being no evidence that the said deeds were made in contemplation of future indebtedness, the plaintiff cannot recover.</p> <p>Ans. “ The principle invoked in this point would be correct in its application to this case if no indebtedness prior to the dates of the deeds existed to raise the suspicion of fraud. Whether the deeds were made in contemplation of future indebtedness or not is a question for the jury under all the evidence, and we submit it to them. If the deeds were made to defraud subsequent creditors, then they would be fraudulent and void and the defendants claiming title through Mrs. Noble, would have no title whatever.”</p> <p>8. Even if the conveyances to Mrs. Noble were void as to existing creditors of John B. Noble, at the dates of the said conveyances, they were not fraudulent and void as to subsequent creditors, unless the conveyances were intended to defraud them, or that Noble, at that time, was about engaging in some hazardous business, which would necessarily involve the capital, credit or labor of others, and no such circumstances have been shown by plaintiffs which Avould raise such a presumption.</p> <p>Ans. “ We'cannot charge you exactly as requested in this point, but say to you that even if the conveyances to Mrs. Noble were void as to existing creditors of John B. Noble, at the dates of the said conveyances, they were not therefore necessarily void as to Kindler, whose debt, it seems, was not contracted until 5th March 1869, unless the conveyances were intended to defraud future, as well as existing, creditors, or that Noble at the time was about engaging in some hazardous business, which would necessarily involve the capital, credit or labor of others. Does the evidence satisfy your minds that the conveyances were made with the intention of defrauding future creditors ? We submit the question to the jury.”</p> <p>4. There could be no legal fraud, except as to creditors at time of conveyances and such subsequent creditors as might have been contemplated by Noble at those times, and as there is no evidence shown from which it can be inferred that he w'as about engaging in a hazardous business, or had in contemplation future indebtedness, the plaintiff cannot recover.</p> <p>Ans. “ There can be no legal fraud, except as to existing or subsequent creditors. To be a fraud as to subsequent creditors, there must have been an intention in the mind of Noble, at the time of the conveyances, to defraud his future creditors. We cannot say to you that there is no evidence in the case from which it can be inferred that he had in contemplation his future indebtedness. There is some evidence on the question, and it is for the jury. We cannot withdraw the case from ,their consideration. But, unless the evidence satisfies the jury that the conveyances were made for the purpose of defrauding the future creditors of Noble, the deeds to Mrs. Noble would not be fraudulent and void as to Kindler, on whose execution the property was sold by the sheriff; and if not fraudulent and void as to him, the plaintiffs cannot recover.” .</p> <p>The verdict was for the plaintiffs. Defendants took this writ, and, inter alia, assigned for error the answers to the above points.</p>

<p>. 1. An indictment will lie against a railroad company for the creation and . maintenance of a public nuisance.</p> <p>■ 2. A turnpike is a public highway, in so far that an indictment will lie against one obstructing it, as for a public nuisance.</p> <p>3. A railroad company may construct its railway across any established road or way wherever it may be necessary to cross or intersect it, hut it must so construct it that it will not impede the passage or transportation of persons or property over said road or way. If it so construct its railway as to be a serious inconvenience and dangerous. obstruction to travel along the road or way, it may be indicted therefor.</p> <p>4. 'The fact that the Act of Assembly, incorporating a turnpike company gives it a specific remedy for an injury to'its rights, does not impair the separate right of the Commonwealth to indict.</p>

No. 29. This was a petition for a mandamus, filed by Jeremiah E. Hawker, which set forth, in substance, that the petitioner had been elected, commissioned and served as the county superintendent of… Held: ‘ that if several words of a statute follow an enumeration of particular cases, they are held to apply only to cases of a like kind with those enumerated 5 McLean 178; 1 Brock. 526; 2 Wall., Jr. 72.

<p>M. brought an action against a steel company, to recover for certain bottoms manufactured and delivered to defendant. 'The alleged contract, under which the work was done, was based upon an interview between the plaintiff and G. and B., superintendents of the steel works, and a written memorandum made at the time, by G., which set forth the terms on which plaintiff would furnish the bottoms. It was drawn in the form of an agreement but was not signed by any of the parties. M. testified that he understood the memorandum to embody an agreement between him and defendant, and that it was handed him to keep, as evidence thereof. B. testified it was drawn at his instance and for his future guidance and not for the plaintiif, and that he did not deliver it to him. At the trial, it was produced by plaintiff and given in evidence. Held, reversing the court below, that the memorandum,-having been drawn during the negotiation between the parties, in regard to the very subject-matter in controversy, it was a question for .the jury, under the whole evidence, whether it contained the terms of an agreement between the parties, and the fact that it was not delivered did not destroy all its effect as evidence of a contract therein recited.</p>

No. 189. Appeal of John Earley, from the decree of the court refusing to open a judgment entered upon a warrant of attorney. Earley gave a judgment-note to John Zaring for $472.18.. Judgment was entered on the note and execution issued thereon, when Earley obtained a rule to show cause why the judgment should not be opened, on the ground that one of three notes which made up the amount of the judgment-note was a forgery.

<p>Error to the Court of Common Pleas of Dauphin county: Of May Term 1879, No. 156.</p> <p>Case by the widow and children of David Fortney against the Pennsylvania Railroad Company, to recover damages for the death of said David Fortney, alleged to have been caused by the negligence-of defendant.</p> <p>The facts are substantially set forth in the opinion of this court. In the court below', after the plaintiffs had submitted all their evidence, the defendant moved for a compulsory nonsuit, on the ground of negligence by the deceased, as shown by the plaintiff’s own witnesses. The court (Pearson, P. J.,) overruled the motion. -</p> <p>The defendant presented the following points, to which are appended the answers of the court:</p> <p>■ 1. It was the plain duty of David Fortney to stop, look and listen, before undertaking to pass over or on the railroad-track; and the rule requiring him to do so is an unbending one; and the train not being on schedule time was no excuse for his failure to do so; and there being no dispute about the facts the verdict must be for the defendant.</p> <p>Ans. “We do'not answer that as requested. We say this. It is the bounden duty of a person crossing the railroad to stop, look and listen. Did the deceased stop ? That he did is proved by that boy. He stopped there on the margin on the road. Did he look? Did he listen ? are questions of"fact. That he stopped is sworn to. Did he look? If he did, could he have seen? which is a question for the jury. If you are satisfied that he didn’t take the pains and trouble, when it was his duty to look, and could have seen, then he is not entitled to recover; for he ought not to have gone on the track if he could have seen the train by looking.”</p> <p>2. The plaintiff having affirmatively shown that the deceased could have seen the approaching train for at least three hundred feet from a point outside of all the tracks, it was his plain duty to have stopped there, and looked and listened; and his neglect to do so was such negligence on his part as precludes a recovery.</p> <p>Ans. “If the jury find the facts assumed, then the law is as stated. It was his duty to stop and look and listen. If he did not stop and look and listen, he was guilty of contributory negligence. If he stopped and looked and listened, and had no reason to suppose that the train would come at all, and inadvertently stepped across the track, then it would be different. But it was his duty to look as well as stop; and if he could look and see it was his duty to do both.”</p> <p>3. The duty of stopping and looking and listening is quite as imperative where an approaching train cannot be seen or heard as where it can. The fact of collision shows the necessity for a compliance with the rule; and, therefore, in every case of collision where- the measure of duty is defined, a failure to perform it is negligence in law, and must be so declared by the court.</p> <p>Ans. “ This point is properly taken. It is the duty of a person to stop, look and listen, and it was the duty of the deceased, whether he thought the train was due or not, to take all these necessary precautions.”</p> <p>4. It is greater negligence to stop on the track of a railroad than a mere- omission to stop, look and listen ; and the plaintiffs having proved that the deceased did so stop for a period of about fifteen minutes at the time he was killed, he was clearly guilty of contributory negligence, and the court is requested to give binding instructions to the jury that the verdict must be for the defendant.</p> <p>Ans. “ That would be so if he stopped on the track on which the cars ran, but if on the siding or between the tracks, it would not be dangerous per se but when he stepped forward the collision doubtless took place. While he stood back on the other track, it could not'take place. Whilst he stood between the tracks it could not, unless the cars were close enough to reach him ; and it was testified that the cars were a little wider than the bumper. If he stood that far forward, then he would be guilty of clear negligence; but if he was standing back on the other track, I do not think it was negligence of itself, and would depend then on the circumstances of the case.” '</p> <p>5. The defendant has the right to a clear track, and to run its trains as far apart, or as close together as it chooses; for its use of its own road is its right, of which the public are bound to take notice; and whether the trains are on schedule time or not, does not alter the duty of a traveller on a public highway.</p> <p>Ans. “ The law is as stated. They have the right to run their trains as close together as they please. They do it at their own risk and peril; for if by running their trains too close together collisions take place they would be responsible to the passengers, and be liable for heavy losses. But they have the right to a clear track except at crossings; and at crossings probably others have the same rights as the railroad company. Both are to be careful. Both have a right to the crossing. Both must be equally careful, though persons crossing, having the power to stop more easily than a heavy train, must stop, look and listen, as we have already said to you several times.”</p> <p>7. No neglect of duty on the part of a railroad company will excuse any person approaching on a highway, or crossing of the track of such company, from using the senses of sight and hearing; and as the plaintiffs have shown that had David Fortney exercised such senses he would have seen the approaching train, there can be no recovery in this case.</p> <p>Ans. “We have said several times over that the law is that it was his duty to stop, look and listen. We say that the duty is as stated, but whether performed or not, is for the jury. It is for the jury whether he performed his duty in stopping and looking and listening. There is no doubt that he stopped, according to the evidence; but if he had stopped and looked and listened with care, he might probably have heard it. That is for the jury. If the deceased had no reason to suppose that the train was running at that time, he might not look. If it habitually varied in time through the winter, and deceased knew it, the necessity of looking and listening was as important as in any other case. He was just as much bound to look and listen, if he knew of its being out of time, as at any other time. 'The trains varying in time, and he knowing it, there would be no excuse for not looking. If the deceased thought he could got across ahead of the train, after looking at it, and missed, he must take the consequences. If a man sees a train coming, and thinks he can step across before it can reach him, and is mistaken in that, it is his own fault.”</p> <p>The verdict was for plaintiffs for $400, when defendant took this writ, and assigned for error the refusal of the nonsuit and the answers to the above points.</p>

<p>1. Where applications are made to open judgments entered on warrants of attorney, the courts have a right to exercise their discretion upon the depositions. The appeal to the Supreme Court, given by the Act of April 4th 1877, was not intended to alter this right, but simply to provide that this discretion might he reviewed.</p> <p>2. Where certain facts are alleged to have been the condition upon which a bond was executed, unless it appears from the evidence that the bond was executed upon this condition, the legal rights of the holder of the bond ought not to be affected by parol evidence of loose conversations.</p> <p>3. Where a surety on a bond desires that the bond should be entered up, in order to create a lien on the estate of the principal, he should give notice in writing to the obligee, under the provisions of the Act of Ma.y 14th 1874.</p>

<p>Error to the Court of Common Pleas of Bedford county: Of May Term 1878, No. 166.</p> <p>Covenant by Thomas A. Scott, Henry A. Stiles, executor of Robert H. Gratz, deceased, Samuel L. Russell and Jonathan H. Seymour against The Kemble Coal and Iron Company, upon certain articles of agreement, the material portions of which will be found in the history of the Case below. The defendant pleaded non fecit conventiones, non fregit eonventiones, covenants performed, covenants performed absque hoc, payment with leave, &c., and that under these pleas defendant would offer in evidence at the trial: . • ,</p> <p>1. All the facts and circumstances admissible in evidence under the pleadings without notice.</p> <p>2. All the facts and circumstances mentioned in the “additional affidavit of defence,” filed October 12th 1876.</p> <p>3. That the contract sued upon is not a lease, but a “license.”</p> <p>4. That the lapse of time and acquiescence of plaintiffs have been such as to render it inequitable to enforce a specific performance of the contract,' -which was executory.</p> <p>5. That the tribunal required to be selected, by the contract, has exclusive jurisdiction in the premises.</p> <p>6. That the railroad or branch road provided by plaintiffs at and before the making of the contract has not been constructed.</p> <p>The defendant subsequently moved the court for leave and was allowed to amend as follows:</p> <p>1. Amend pleas by adding to those already filed the plea of “performance with leave.”</p> <p>2. Amend special matter by adding want of title in plaintiffs to the land described in the article upon which suit is brought.</p> <p>3. Misrepresentations and mistake as to the value, character, extent and accessibility of the iron ores supposed to be granted by the agreement.</p> <p>5. General report and belief that a branch railroad would be constructed from, at, or near Mt. Dallas, to, or near to the iron ores mentioned and granted in the agreement, and that the contract was made upon that opinion and no such branch railroad was constructed.</p> <p>6. That it was not possible, by any degree or amount of effort, to finish, tunnel and take out ore prior to the commencement of this suit.</p> <p>7. That the iron ore does not exist in the premises granted, as was supposed and believed when the agreement was signed.</p> <p>8. That defendants never took possession of the premises or any part thereof.</p> <p>9. All the facts stated in defendants’ “amended affidavit of defence,” filed October 12th 1876.</p> <p>10. All the facts stated in “defendants’ pleas” and the first six items of the “notice of special matter.”</p> <p>11. That defendants executed the agreement under a mistaken belief, opinion or understanding of its construction, having "signed the same with an honest belief that the clause requiring not less than $10,000 in any period of three years was not a covenant, but a mere stipulation ; for the non-performance of which, the contract might be revoked or cancelled by plaintiffs.</p> <p>12. Concealment in this — plaintiffs or some of them, or some person, with their knowledge, sunk a shaft upon the ore vein within or near to the premises embraced in the agreement, and found it to be small; not of sufficient quantity to justify tunnelling and other expenses necessary to reach and obtain it, and this informatiori was withheld from defendants until after the execution of the agreement in suit.</p> <p>The additional affidavit of defence above alluded to, was made by William Lauder, an agent of defendants, and averred that certain promises and representations of plaintiffs in regard to the construction of a railroad from the leased lands were part of the inducement which led the defendants to execute the contract; that the nature and character of the soil, and the rock therein were such, as to render it impossible to reach the ore so as to take out the quantity named, and that there was no evidence that there was any ore on the premises, or in sufficient quantities to justify mining and the taking of the number of tons required by the contract. And that this question had never been referred to, or decided by the tribunal provided in the contract itself.</p> <p>The material facts of the case were these:</p> <p>In 1856, William P.. Schell and S. H. Tate purchased from Frederick Mensch, the right and privilege “ to dig, take and carry away all such iron ore and other minerals as may be on, in and under that part of a tract of land owned by said Mensch,” in Black Valley, Bedford county. By sundry sales and conveyances, the title of Mr. Schell became vested in the plaintiffs. In 1872, the plaintiffs held or claimed thirteen tracts of land or ore rights, and timber or surface rights to the balance.</p> <p>In the same year, these plaintiffs granted to defendant, The Kemble Coal and Iron Company, “ the exclusive right to mine, dig, and take away the iron ore” from tracts Nos. 3, 4, 6 and 7, with the right to use timber from No. 7 and also from tract No. 2, for the period of-eleven years from April 1st 1872. This agreement was executed May 15th, May 30th, June 11th, and was delivered July 13th 1872. It required the payment of fifty cents per ton royalty for each and every ton of ore mined and taken, contained a clause compelling the grantors to allow the defendant the option to purchase the properties held by'them south of the Juniata river, some twelve tracts, at any time within one year, if defendants saw fit to do so, at and for the sum of $100,000. It also contained a clause in these words, “ For the first year of the lease the parties of the second part are to pay rent on as many tons as they may be able to mine, but for any period of three years thereafter the rent in the aggregate is not to be less than $10,000, whether ore to that extent or amount is mined or not, unless the irregularities of the ore-vein, should to the satisfaction of the said parties of the first part prove so great as to prevent the said parties of the second part- from taking out ore to that amount, and in case of a difference of opinion between the parties hereto on this point, they are to submit this matter to three disinterested referees to be selected thus: one by the parties of the first part, and one by the said parties of the second part, and the third by the two parties, so selected; but should the said parties of the second part pay rent in excess of the ore mined and taken away for any period; they are to have the privilege to take said ore during- any after-period of. and within the said term of eleven years, but not after said term has expired.”</p> <p>Mr.-L. T.-Wattson, the vice-president of the defendant company, during the negotiations which resulted in this agreement, wrote a letter to S. L. Russell, one of the plaintiffs, dated March 23d 1872, wherein he said, “ If you will ascertain whether tracts 3, 4, 6 and 7 of the Black.Valley lands will be leased together, we taking the risk of your establishing the title to No. 3, I will see what can be done towards getting a railroad.”</p> <p>In 1872, the Huntingdon and Broad Top Railroad was finished, and cars were -running thereon from Huntingdon to Mt. Dallas. The Bedford and Bridgeport Railroad was finished from Mt. Dallas to Bedford, thence to Bridgeport, where it connected with Pittsburgh and Connellsville Railroad, and thence to state line, where it connected with the Cumberland and Pennsylvania Railroad. The Kemble Coal and Iron Company had two furnaces in operation at Riddlesburg, some fourteen miles north of Mt. Dallas. The lands embraced in the agreement were about three miles south-east from Mt. Dallas. The Southern Pennsylvania Railroad was in process of construction, and the lands were near its contemplated and surveyed route. The Bedford and Bridgeport Railroad Company had-resolved to build a branch road to these lands. The Pennsylvania Railroad Company owned nearly all the stock- and all the bonds of the Bedford and Bridgeport Road. Mr. Russell was a. stockholder therein. So was the Kemble Coal and Iron Company, and L. T. Wattson, vice-president of this company, was a director as well as stockholder. Soon after the execution of the agreement, in 1872, the defendants, finding that the land leased was too high to enable them to reach the ore to advantage, purchased ten acres of adjoining and lower land. Upon this the work of driving a tunnel was at once commenced, and continued vigorously for one year, at a cost of about $5000. To have reached the ore, they alleged, would have required between three and four years of additional time, and at least $15,000 of e»pense. In the meantime, defendants, as they averred, having learned that the veins were thin and: irregular, and Barndollar and Baughman having given notice that they claimed title to one of the tracts of land embraced in the agreement, and it appearing that this tract contained at least one-third of all the ore embraced in the agreement, and that being the portion nearest the railroad, - and first to be mined, and that no branch railroad was likely to be constructed, 'ceased-.operations, and so .notified plaintiffs. No counter notice was given and no demand was made for royalty until the fourth year of the lease, when plaintiffs brought' this action.. The case was reached for trial in January 1878.</p> <p>The trial was before Hall, P. J-. The following assignments of error, all of which are passed upon by this court, will show the various questions raised in the court below.</p> <p>1st error: The court erred in their ruling on the fourth offer of evidence, as follows: John Fulton on the stand: Defendants proposed to prove by this witness the nature, character, extent and value of the land embraced in the agreement in suit. The difference between the actual location of the ore-vein in the ground from that contained on the draft proved by Mr. Russell. Also that at the time of the agreement in suit and prior thereto it was a well-known fact that a branch railroad was about to be constructed from the railroad then in being at or near Mt. Dallas, to or in the direction of the ores leased. That this fact was well known to defendants; that it was a principal inducement for the execution of the contract; that said branch railroad was not constructed by reason of any fault of defendants. Also the character and distance of the proposed tunnel; and that by no reasonable human agency could ore have been reached prior to the bringing of this suit, and that ore does not exist in the premises in such quantity as to justify mining.</p> <p>The counsel for the plaintiffs object to the foregoing offer for the reasons following:</p> <p>1. The testimony is irrelevant to the issue. 2. It is not competent for the defendants to give evidence of rumors as to the construction of a branch railroad. 8. The offer does not allege that the plaintiffs held out the building of a railroad as an inducement to the contract. 4. In the absence of fraud or mistake the agreement must stand and cannot be contradicted. 6. There is no warranty expressed or implied in the agreement as to the nature, character or extent of the ore-veins, and the defendant took the same at its risk.</p> <p>Per Curiam. — “ It is competent to show the non-existence of 'ore in the land, or that it is in a seam too small for mining; to that extent evidence admitted. Rumors about building of a branch road with which the plaintiffs were not connected are incompetent. So, also, the representation of the supposed general course of the ore vein on the draft unless there was misrepresentation.”</p> <p>2d error: The court erred in their ruling on the sixth offer of evidence, as follows: L. McDonald on the stand: Defendants propose to prove that in the ground the ore-vein is not to be found in one entire tract of land measuring two hundred and ten rods, upon or in and through which the vein of ore is represented as passing upon the map proved by Mr. Russell. This to show a mistake calculated to mislead the defendants at the time the agreement was executed. That this is No. 10, and embraced in the offer of lands to defendants at $100,000.</p> <p>“ Objected to, for the reason that the tract referred to is not cm-braced in the lands leased for mining purposes. Rejected, and exception to defendants.”</p> <p>3d error: The court erred in their ruling of the seventh offer of evidence, as follows: William Lauder on the stand : Defendants propose to prove that the agreement in suit was executed by defendants upon the honest conviction and belief (whether correct or erroneous) that the clause relating to the payment of $10,000 in any period of three years was a mere stipulation, and could-be avoided by relinquishing the contract. And that the negotiations which led to the execution of the agreement were all so interpreted and understood by defendant.</p> <p>Per Cur. — “ The witness having stated that he was not present at any negotiations that led to lease, and had no knowledge of them from plaintiffs or any of them, the offer is rejected and bill sealed to defendants.”</p> <p>4th error: The court erred in ruling on the eighth offer of evidence, as follows: Defendants offer written opinion of Messrs. Hall and Jordan given to Messrs. Barndollar and Baughman at the time of their contemplated purchase from Frederick Mensch, in favor of the Mensch title and adverse to that of plaintiffs. This for the purpose of showing that the title of plaintiffs was not a good marketable title. Objected to as irrelevant.</p> <p>Per Cur. — “It is not made to appear upon what statement of facts this opinion is based. Rejected, and exception to defendants.”</p> <p>5th error: The court erred in their answer to defendants’ first and second points, as follows :</p> <p>1st point. That covenants are not to be presumed; that the agreement in suit contained no express covenant to pay $10,000 in any period of three years, and the language of the agreement on that subject is a mere stipulation, which may be avoided by abandonment or surrender of the contract by defendants.</p> <p>2d point. That no action can be sustained for royalty due at the end of four years, except for the price of ore actually mined. Any action for ore not taken can only be sustained after the termination of the entire term.</p> <p>Ans. “First and second points refused.”</p> <p>6th error: The court erred in answering the sixth, tenth and eleventh points submitted by defendants, as follows:</p> <p>6th point: That although there may have been no want of good faith on the part of plaintiffs, yet if the defendants placed a construction upon the agreement different from that of the plaintiffs, even if such construction of defendants was erroneous, and in so doing defendant committed a mistake which a fair and reasonable man, under the circumstances, might have fallen into, without gross ignorance or supine negligence, then no specific performance of the contract should be enforced, and the verdict should be Tor defendants.</p> <p>10th point: A contract maybe so inequitable and unjust, may contain so much of hardship on one hand and so small a consideration on the other, as to raise a legal presumption that it was not understood at the time of its execution; and if the jury believe that the defendants made a mistake at the time this agreement was executed by supposing that they could abandon the mine and thereby avoid liability in case it became impossible to find ore, or to Teach it if found, then there should be no specific performance of this contract and the verdict should be for defendants.</p> <p>11th point: That circumstances and surroundings, as they exist when an agreement is executed enter into a contract, and this one should not be enforced if entered into by defendants under an actual and honest misunderstanding on a material point.</p> <p>Ans. “We have answered these points in the general charge. You cannot assume that the defendants misconstrued the meaning of the article; the presumption is that they understood the instrument, and there is no evidence we have heard to the contrary.”</p> <p>7th error: The court erred in their answer to the seventh point of defendants, as follows : That in proportion to the severity of the terms imposed by the one party upon the other, it becomes incumbent on the former to see that the terms are explicitly stated. If the plaintiffs have used terms in the agreement which are reasonably capable of misconstruction, then the defendants may construe them in the manner most advantageous to the company.</p> <p>Ans. “ This has no application to the case.”</p> <p>8th error: The court e.rred in omitting entirely to answer defendants’ ninth point, which was as follows : That specific performance of a contract should not be decreed where it was executed by either party under an honest mistake, even though such mistake was not caused by the other party nor unless it is strictly equitable to do so, nor where the bargain is hard, unequal, unjust or oppressive, nor where it will operate in a manner different from that which was in contemplation of the parties at the time when it was executed.</p> <p>9th error:' The court erred in their answer to defendants’ twelfth point, which point and answer were as follows :</p> <p>12th point: If the jury believe that the defendants executed the agreement in.suit under the impression and belief that a branch railroad would soon thereafter be constructed, from the railroad then existing to some point at or near the iron ores granted in the agreement, and that this belief was a principal inducement to the execution of such contract; that such branch railroad was not constructed, by reason of unforeseen causes, then the. contract' is inoperative and invalid, and the verdict should be for defendants.</p> <p>Ans. “ We have answered this in the general charge. Nor if Mr. Wattson had a project for getting a branch railroad, with which the plaintiffs w.ere not connected in any way, either in fact or by making representations in the negotiations of the contract, would that entitle them to relief. Was a branch road promised by plaintiffs, which has not been built? or did they hold out any inducement of a road in any way ? Did the evidence establish this ? You cannot find it on the assertion or argument of counsel, unless there is evidence of it.”</p> <p>10 th error: The court erred in their answer to defendants’ fourteenth point, as follows: That if the jury believe that in September 1873, defendants ceased all operations, and that this fact was then or soon after made known to plaintiffs, and that no royalty was demanded or paid before March 1876, then they have a right to presume that the contract was ended by the mutual consent of the parties.</p> <p>Ans. “ Refused.”'</p> <p>11th error: The court erred in their answer to defendants’ fifteenth and sixteenth points, which points and answer were as follows:</p> <p>15. That the agreement of Frederick Mensch with S. H. Tate and William P. Schell, dated February 8th 1856, does not convey title to the iron ore contained in the land therein described; that equity will not now decree a specific performance of that contract; that the title of plaintiffs to that tract of land (106 acres), and the iron ore therein, was and is radically defective, and if the jury believe that this property was and is material. to defendants, then there should be no decree for performance, and the verdict should be for defendants.</p> <p>16. That the evidence in the case established the fact that the title of plaintiffs to the Fred. Mensch tract is not a marketable title; that it is surrounded with doubts and uncertainties sufficient to prevent a decree of specific performance, and therefore the verdict should be for defendants.</p> <p>Ans. “We reserve these points, to be determined, if necessary, • on a motion for a new trial. If you find that the defendant had full knowledge of the difficulties with regard to the Mensch title, and took it at their own risk, we will not have to determine these points; there could be no time now to do so without great inconvenience and delay to other suits. You may make a special finding on this point. You can say whether you find it affirmatively or negatively ;• that he did purchase with knowledge and at his own risk, or that he did not; if not, then was that tract essential to the contract, and did the purchasers fail to pay the balance of the purchase-money ?</p> <p>12th error: The court erred in their answer to defendants’ seventeenth point, which point and answer were as follows : That the letter of L. T. Wattson, Esq., of March 23d 1872, to Hon.- SL. Russell, does not establish the position that defendants took the risk of title to tract; No. 3. No such provision is contained in the agreement itself, which is the consummation of the contract, besides there is no evidence that plaintiffs ever did anything thereafter to establish the title to said tract No. 3.</p> <p>Ans. “ The letter of Mr. Wattson, the vice-president, is dated 23d March 1872 ; the contract was consummated soon after. It is not a contradiction of the articles. If in fact the contract was consummated on the basis of the letter, then the defendants would be bound by the offer of Mr. Wattson in the letter.”</p> <p>13th error: The court erred in their answer to plaintiffs’ second point,' as follows: That said agreement having been put upon record on the 7th day of September 1865, prior to the conveyance by Mensch to Baughman and Barndollar, of the date of November 14th 1871, they, Barndollar and Baughman, took the same, subject to whatever rights Tate and Schell had under such agreement.</p> <p>Ans. “Affirmed.”</p> <p>• 14th error: The court erred in their answer to the third point of plaintiffs’ below, which point and answer were as follows: That if L. T. Wattson was the person who negotiated the lease with plaintiffs, had knowledge of the alleged defect of title of the plaintiffs in the Mensch tract, and accepted the terms of the lease, agreeing to take the risk of the title thereto, then the defendants cannot set up said alleged defective title as a defence in this case.</p> <p>Ans. “Affirmed.”</p> <p>15th error: In answering the 4th and 6th points of defendants, the court erred in using the following language: “ And (if) the iron ore is there and in sufficient quantity, and not affected by irregularities so as to prevent taking out 20,000 tons, the verdict should be for the plaintiffs for $10,000, with interest from the time it fell due, provided you find the defendants took tract No. 3, at their own risk.”</p> <p>16th error: The court erred in not affirming the fourth point of defendants below, and directing a verdict for defendants. Said fourth point was in these words : “ That all the evidence in the case does not present such a state of facts and circumstances as would move a chancellor to decree a specific pei’formance of the contract in suit, and therefore the verdict should be for defendants.”</p> <p>The verdict was for the plaintiffs, for $11,075, “and that defendants took the Mensch tract with knowledge of the title and at their own risk.” A motion for a new trial was refused, and judgment entered on the verdict. The defendants then took this writ, alleging that the court erred, as set forth in the foregoing assignments of error.</p>

171. Debt for a legacy, brought by John W. P. Heed against James H. Marshall and Joseph Kittinger, executors of John Waugh, deceased. John Waugh was a bachelor, and the owner of a considerable real and personal estate. He died in April 1874, having made his will dated November 7th 1870, which was duly proved April 28th 1874. The defendants, his executors, filed an inventory of personal estate on the 26th of May 1874, amounting to $44,482.12.

130. Debt on a bond by M. B. Blauser, guardian of Savannah I. Hartzel, against J. H. Myers, Jeremiah Diehl and John Wolford. The material facts were these: On the 20th of August 1860, Myers was appointed by the Orphans’ Court the guardian of the person and estate of Savannah I. Hartzel, a minor child of L. E. Hartzel, deceased. On the same day, he filed a bond in the sum of $2000, made in pursuance of the Act of March 29th 1832, which was approved by the court.

<p>, 1. Upon a sale of real estate by an assignee for the benefit of creditors, under the provisions of the Act of February 17th 1876, a judgment, which at the-time of the sale and confirmation, was a lien and. entitled to be paid-out of the proceeds, is not deprived of the right thereto by reason of the expiration of five years from its entity, before payment of the purchase-money and delivery of the deed.</p> <p>2. The judgment-liens are discharged by the confirmation of the sale and the rights of owners of judgments attach at that time.</p> <p>3. Carver’s Appeal, 8 Norris 276, and Tomlinson’s Appeal, ante, p. 224, followed.</p>

<p>Certiorari to the Court of Quarter Sessions of Adams county: Of May Term 1879, No. 74.</p> <p>On the 30th of August 1877, the requisite number of freeholders, resident in the borough of Gettysburg, presented their petition to the Court of Quarter Sessions, setting forth, “ that it would promote the interest of your petitioners, and the taxpayers generally of said borough, to have the said borough divided into wards.” On the 1st of September 1877, the court appointed three commissioners, and issued an order to them “ to inquire into the propriety of granting the prayer of the petitioners.”</p> <p>On the 12th of November 1877, the commissioners made report to the court, that after having given legal notice, &e., “ they proceeded to inquire into the propriety of granting the prayer of the said petition,, and that in the opinion of the said commissioners it would be proper to grant the prayer of the said petitioners, and the said commissioners hereby recommend and report that the said borough shall be divided into three wards, and the lines and boundaries of which, shall be as follows.” The report then set out by metes and bounds the lines of the proposed wards, but was not accompanied with a draft or plot. On presentation of the report, November 12th 1877, the court confirmed it nisi.</p> <p>Exceptions were filed thereto on the 28th of January 1878, for the following reasons:</p> <p>I. That the proceeding is defective in that the petition does not designate the number of wards proposed nor their boundaries. 2. That no' draft was returned. 3. That the order of court was to inquire into the propriety of granting the prayer of the petitioners.” 4. That the petition does not ask for any order for any definite purpose. '</p> <p>On the hearing of said exceptions, the court, on the 12th of April 1878, recommitted the report to the commissioners, to submit a plot or draft with their report, On the 18th of April 1878, the commissioners submitted an amended report, in substance the same as the first, but accompanied with a plot or draft of the wards, which was, the same day, confirmed nisi by the court.</p> <p>To this amended report exceptions were again filed August 17th 1878, the same in substance as the first exceptions, leaving out the second in reference to a plot or draft, and inserting in lieu thereof, that the draft or plot of the boundaries of the borough of Gettysburg was not correct.</p> <p>On the 16th of August 1878, without any order of court, or authority, and after the duties of the commissioners had ceased, and their order had been expended and returned, they filed, in the office of the clerk of the Court of Quarter Sessions, a supplemental report, with a plotchanging the boundaries of the wards proposed.</p> <p>On the 23d of December 1878, the court made the following order and decree, endorsed on the original report: “Exceptions dismissed and report confirmed absolute.”</p> <p>To this order and decree of the court this certiorari was issued •December 30th 1878.</p>

<p>Iu the sale of the stock, lease and fixtures of a drug store, the vendee, who had no knowledge of the business, relied upon the truth of the vendor’s statements as to the value of the store. A mortgage was given for a portion of the purchase-money, and in ejectment thereon, held, that if the statements made by the vendor of the value of the property were false in fact, his belief that they were true was of no consequence, and did not preclude the vendee from setting up their falsity as a defence : that if the vendor permitted the vendee to contract with him on the faith of his statements of value, he was bound not merely to believe, but to know they were true. Held, further, that a conditional verdict is not proper, in an ejectment upon a mortgage.</p>

<p>Error to the Court of Common Pleas, of Adams county: Of May Term 1879, No. 79.</p> <p>Debt by Samuel Hershey against Peter Fidler.</p> <p>Hershey issued his summons in debt against Peter Fidler. After the return-day, the plaintiff moved to amend, by adding the names of George W. Householder and Albert Spangler as co-defendants, which amendment was allowed under exception by defendant, and an alias summons was issued against said parties. This writ was returned “ served on George W. Householder,” and as to “Albert Spangler not found.” Householder did not appear or make any defence to the suit.</p> <p>The plaintiff filed his narr. in the original suit in debt against Peter Fidler for $500, rent due on an alleged demise of a mill and appurtenances to George W. Householder, Albert Spangler and,’ Peter Fidler, for a year from April 1st 1871 to April 1st 1872,/ and for use and occupation of the same. To this the defendant., pleaded nil debet.” , ></p> <p>' After the case was thus at issue, the plaintiff, on the 25th of April 1878, moved further to amend, by changing the name of one of the parties who had been added to the record to Elliot H. Spangler, instead of Albert Spangler. This was objected to by defendants and allowed under exception, .on condition that a pluries summons be issued against Elliot H. Spangler. To this writ there was no return made, nor was there any appearance or defence by Elliot H. Spangler.</p> <p>The case was called for trial, when the plaintiff further amended his narr. by inserting the name of George W. Householder after that of Peter Fidler, wherever it occurred in the narr., and so as to make his demand against said Fidler and Householder. The amendment was allowed, and the jury was directed to be sworn to try the case against Fidler and Householder, and were so sworn. The verdict was rendered generally, and judgment entered thereon..</p> <p>At the trial before McClean, P. J., it appeared that Hershey leased a mill to Householder for one year for $500. In the body of the lease, the name of Householder alone appeared,- but Spangler and Fidler signed as securities. The rent not being paid, this suit was brought to recover it.</p> <p>Defendant having proved notice to the plaintiff “to push for' the rent as soon as it was due, that he wanted out of it,” then offered to prove that when the rent in question became due, Householder had sufficient property on the premises to pay the rent, if proceedings had been taken to collect it.</p> <p>This was objected to as irrelevant, and the court sustained the objection.</p> <p>Defendant having proved by Householder that he had paid some bounty tax for Hershey to John Eckenrode, and had a receipt for it, but had lost it and could not remember the amount, ■ and that Eckenrode was dead — then offered to prove by William H. Detrich that Householder had shown him a receipt for tax paid to Eckenrode for the year 1871, for $46, on the mill property of Hershey.</p> <p>Objected to, on the ground that the evidence was inadmissible’ under the pleadings, which objection the court sustained.</p> <p>The verdict was for the plaintiff for $444.60, and after judgment thereon, Fidler took this writ and alleged that the. court erred in allowing the amendments, which constituted the first four assignments, and in their rulings upon the above evidence which constituted' respectively the fifth and sixth assignments.</p>

<p>The administrators of Y., under an order of the Orphans’ Court, sold certain real estate of the decedent to B., and to secure the payment of a balance of the purchase-money took his judgment-bond. The bond was conditioned for the payment of a sum representing the widow’s dower and also the distributive shares of Y.’s heirs. Some years before the bond was entered, a memorandum or receipt was endorsed thereon in the form of a release, by one of the administrators, but was not signed. Judgment was subsequently entered on the bond, and the receipt was noted upon the continuance-docket, but the full amount of the original obligation, without the receipt, was docketed in the judgment-index. The property was afterwards sold by the assignee of B. for the benefit of creditors. Held, that the administrators were not estopped from alleging the truth concerning their judgment by reason of the receipt found upon the original bond, and upon the continuance-docket after the entry of judgment.</p>

<p>1. Without a levy, a writ of fieri facias creates no lien upon real estate, independent of the judgment which it executes.</p> <p>2. Real estate, the sale of which produced a fund in court, belonged to A., who inherited it from his father. The descent was cast on the 29th of September, at about 11 o’clock a. m. The appellant’s judgment against A. was entered between 8 and 10 p. m. of the same day. C. obtained a judgment against A. on the 21st of February 1874, and on September 29th 1877, after the entry of appellant’s judgment issued a fieri facias which reached the sheriff at 11 p. m. There was no levy under this fi. fa. until several days thereafter. Held, that said execution was not entitled to come in upon the fund as against appellant’s judgment.</p>

<p>To grant or refuse a license is entirely within the discretion of the Court of Quarter Sessions, and no appeal lies therefrom.</p>

<p>1.. The-finder of lost property has a valid claim to the same against all persons but the true owner, and generally the place in which it is found creates no exception to this rule.</p> <p>2. The fact that money is found in the public room of a hotel, creates no presumption that it belonged to a guest of the hotel, and that the hotel-keeper, by reason of its thus being found, is entitled to the custody thereof to await the true owner.</p> <p>3. A domestic servant in a hotel found in the public parlor a roll of bank-bills. She immediately informed the proprietor of the hotel, who suggested that the money belonged to a transient guest of the house and received it from the servant to hand to the guest. It was afterwards ascertained that the guest did'mot lose the money, and upon demand by the servant the proprietor refused to return it to her. She brought assumpsit for the money. Held, that she was entitled to recover.</p>

<p>1. Plaintiff worked defendant’s farm upon the shares. By the terms of the lease, he was to have half the grain, but the right of possession thereof in the fields or in the barn was to be in the defendant, until divided and his share delivered to him under the terms of the lease. The plaintiff moved off the farm in the spring. During the following summer the wheat sown the fall previous was harvested, and defendant refused to allow plaintiff to take his share thereof, on the ground that the plaintiff had fraudulently withheld a portion of the corn and other crops of the previous season. The plaintiff brought trover and conversion for the value of one-half of the wheat crop, jMeld, that the action would not lie.</p> <p>2. It seems, that even if this was the proper remedy the defendant could show, in mitigation of damages, that the plaintiff had fraudulently withheld a portion of the crops and could recoup the value thereof in this proceeding.</p>

<p>1. Where a property is sold under a judgment obtained on a mortgage, and a creditor, whose judgment was a first lien upon the property sold and several other properties of the debtor, voluntarily declines to take the money and allows it to be applied to the mortgage, he will not thereby be postponed to junior lien-creditors upon a distribution of the proceeds of the sale of one of the other properties.</p> <p>2. The executors of A. had ajudgment, which was a first lien upon several tracts of land belonging to B. The latter mortgaged one of these tracts to C., and under a judgment obtained upon the mortgage, the tract was sold. In the distribution of the proceeds, the executors declined to take their money and allowed it to be applied to the mortgage. Subsequently B. conveyed another of his tracts to D., who gave a mortgage for the purchase-money. The mortgage was accompanied with eleven bonds, upon one of which the mortgaged premises were subsequently sold and the fund brought into court for distribution. The holders of the bonds contended, that the executors of A., having declined to take the fund on the previous distribution, must now be postponed to them, which contention the court below sustained. Held, that this was error and that the executors should have>been allowed to participate in the fund.</p> <p>3. If the interests of junior lien-creditors require that a prior lien-creditor shall do or omit to do a particular thing, they should give him notice thereof before they seek to hold him responsible for any such acts or omissions.</p>

<p>1. An alteration in tbe charter of a railway company, by which the additional privilege is given to the corporation to extend its road, is not such an invasion of the contract of subscription as will relieve the subscriber to the stock from his liability to pay. Gray v. The Monongahela Navigation Co., 2 W. & S. 156, followed.</p> <p>2. It seems, that the reservation to the legislature, in the Act of February 19th 1849, regulating railroad companies, to alter or amend any charter granted under said act, was only intended to enable the legislature to act without the consent and against the will of the corporation ; but where the alteration is made on the suggestion of the company, the legislature has nothing to do with the case.</p>

<p>Error to the Court of Common Pleas of Beaver county: Of October and November Term 1878, No. 168.</p> <p>This case was certified to the Middle District from the Western District. It was originally brought in Allegheny county, but the venue was afterwards changed to Beaver county.</p> <p>Trespass on the case by John Gibson’s Son & Co., of Philadelphia, against the county of Allegheny, for the loss of sixty barrels of whiskey, destroyed by the mob during the labor riots, which occurred in said county in July 1877.</p> <p>At the trial, before Hice, P. J., it appeared that the whiskey was shipped at Cincinnati on the 16th of July 1877, to be carried to Philadelphia, over the Pittsburgh, Cincinnati & St. Louis Railroad and the Pennsylvania Railroad; that it arrived at Pittsburgh on the morning of the 19th of July; that on the evening of that day the sheriff of the county of Allegheny was notified by the officers of the Pennsylvania Railroad Company, that a number of men had forcibly taken possession of a portion of the railroad company’s property, and the freight of shippers, and were obstructing tbe passage of trains. These officers also requested the sheriff to go in person and disperse the mob. He sent for some of his deputies and proceeded to the scene of the disturbance. Upon his arrival he found several hundred men in possession of the company’s road, whom, as sheriff’of the county, he ordered to disperse. This, in the language of the sheriff, “ they positively refused to do,” and said “ they wexe going to hold that road, and that they were going to wade in blood to their waists.” This effort proving unavailing, the shei’iff retux-ned to his home, and on the way sent a telegram to the governor, asking for troops to quell the riot. An order was sent to the genei’al commanding at Pittsburgh, to assist the sheriff with the troops. On Friday and Saturday efforts were again made by the shex’iff to have the mob dispei’se, but on neither occasion was he accompanied with a posse or military force, his efforts to procure a posse having been unsuccessful. On the afternoon of Saturday he accompanied the portion of the state military force, which had arrived from Philadelphia, to 28th street, where the mob was in possession of the railroad. Here the sheriff again addressed the riotex-s and commanded them to disperse. His efforts were again unavailing, and the military wex’e then brought up and attempted to force back the mob in possession of the road. The rioters assaulted the soldiery with stones, clubs and pistol shots, and the latter then fixed on the mob and a number of persons were killed and wounded. In a few hours the mob was lax-gely augmented in numbexs, and duxúng the evening and night, and the following morning, the property of the railroad company, including its shops, elevator and hotel, and the trains upon the road, were all destroyed by fire kindled by the mob, who surrounded the property and trains, and would allow no interference to extinguish it. In the fire thus enkindled, the whiskey in suit was bux’ned. This action was bi-ought against the county, under the provisions of the Act of May 31st 1841, Pamph. L. 416, extended to Allegheny county, by the Act of March 20th 1.849, Pamph. L. 184, whex’eby it was enacted:</p> <p>Sect. 7. In all cases where any dwelling-house or other building or propex’ty, real or personal, has been or shall be desti’oyed, within the county of Philadelphia, in consequence of any mob or riot, it shall be lawful for the pex'son or pei'sons intex’ested in, and owning such property, to bring suit against the said county where such px’operty was situated, and being for the recovery of such damages as he or they sustained by reason of the destruction thereof, and the amount which shall be recovered in said action shall be paid out of the county treasury, on warrants drawn by the commissioners thereof, who are'hex-eby required to draw the same as soon as said damages are finally fixed and ascertained.</p> <p>Sect. 8. No person or persons shall be entitled to the benefits of this act, if'it shall appear that the .destruction of his or their property was caused by his or their illegal or improper conduct, nor unless it be made to appear that he or they, upon the knowledge had of the intention or attempt to destroy his nr their property, or to collect a mob for such purpose, and sufficient time intervening, gave notice thereof to a constable, alderman, or justice of the peace, of the ward, borough, or township, in which such property may be situated, or to the sheriff of the said county, and it shall be the duty of the said sheriff, alderman, constable, or justice, upon the receipt of such notice, to take all legal means to protect said property so attacked, or threatened to be attacked, and if the sheriff, alderman, constable, or justice of the peace, upon the receipt of such notice, or upon knowledge of such attack or intended riot, or disturbance, shall neglect or refuse to perform his duties in the premises, he or they, so neglecting or refusing, shall be liable for the damages done to such property, to be recovered by an action on. the case, in the Court of Common Pleas of the proper county, and shall be deemed guilty of a misdemeanor in office, and on conviction thereof by the proper court, his commission shall be void.</p> <p>The following.assignments of error will show the,various questions-in the case and the manner in which they were raised in the court below: .</p> <p>1. The court below erred in affirming the plaintiffs’ first point, viz.: That under all the evidence in this case, if the same be believed by the jury, the plaintiffs are entitled to recover.</p> <p>2. The court below erred in refusing to allow the defendants to prove the facts' contained in their second offer, in the following words, to wit: That on the afternoon of July 19th 1877, a strike of the employees of the Pennsylvania Railroad Company was inaugurated; that the said strike was occasioned by the reduction of wages of the said employees, and by increasing their duties; that no destruction of property, actual or threatened, took place until after the railroad authorities, on July 21st, at 5 P. M., by means of state troops s-ent to their aid by the state authorities, had endeavored-to run their trains and enforce their rules against their striking employees by attacking them with arms and shooting down some of their number; the purpose of this offer being to show that the railroad company, in electing to forcibly run its trains and shoot down striking employees, thereby occasioned the mob and was responsible for the consequences, and Avas guilty of improper conduct within the meaning of the statute.</p> <p>3. In refusing to allow the defendants to prove their fourth offer, to wit: That the riot and violence that took place in the county of Allegheny on the 20th, 21st and 22d of July 1877, and which resulted in the destruction of the plaintiffs’ goods, was not a local mob or riot Avithin the meaning 'of the Act of Assembly under which the suit is brought, but was a part only ,of a Avidely extended and organized insurrection which .broke out simultaneously in Ayidely distant parts of the country, .and to prove said allegations defendant proposes to show that riots similar to that which resulted in the destruction of plaintiffs’ goods, broke out simultaneously with it at Martinsburg, West Virginia; at Cumberland'and Baltimore, Maryland; at Harrisburg and Reading, Pennsylvania; at Dennison and Newark, in the state of Ohio, and at Chicago, Illinois. That the governors of the respective states in which said outbreaks took place were compelled to call out ‘the military forces of the state and to issue proclamations and to call upon the president of the United States, who responded to said call by placing a portion of the military forces of the general government at the disposal of the state authorities; and that the said outbreak, by reason of its nature and extent, was beyond the power of the local authorities to anticipate or to subdue. The purpose of the offer being to show that the outbreak and violence which resulted in the destruction of the plaintiffs’ goods did not constitute a mob or riot within the contemplation of the statute declared on.</p> <p>4. In refusing to allow the defendants to prove, as contained in their fourth offer: That the said outbreak, by reason of its nature and extent, was beyond the power of the local authorities to anticipate or to subdue. The purpose of this part of the offer being to show that the outbreak and violence which resulted in the destruction of the plaintiffs’ goods, did not constitute a mob or riot within the contemplation of the statute declared on.</p> <p>5. In refusing to charge the jury as requested in the defendants’ sixth point, to wit: That the state authorities having, at the request of the county and railroad authorities, called out the state military forces and sent them to the scene of the strike at Pittsburgh, and said forces having appeared there before any destruction, actual or threatened, of property had taken place, and having undertaken to su-bdue, and overpower the alleged rioters, the county was thereby relieved from any liability for loss thereafter occasioned, and is not liable to the plaintiffs in this action.</p> <p>6. In not affirming the defendant’s fifth point, which was as follows : If the jury find from the testimony that the whiskey, for the loss or destruction of which'the plaintiffs claim to recover, was shipped at Cincinnati, Ohio, to be carried thence to Philadelphia, in the ordinary course of transportation by the Pittsburgh, St. Louis & Cincinnati Railroad Co., and the Pennsylvania Railroad Co., as common carriers, and that said whiskey was destroyed by a mob or riot, while at Pittsburgh, in the cars of said railroad company, en route to its destination, then the property was not property situate in the county defendant, within the meaning of the Act of Assembly given in evidence.</p> <p>T. In not affirming the defendant’s sixth point, which was as follows: That the state -authorities having, at the request of the county and railroad authorities, called out the state military forces and sent them to the scene of the strike at Pittsburgh, and said forces having appeared there, before any destruction, ■ actual or threatened, of property had taken place, and having undertaken to subdue and overpower the alleged rioters, the county was thereby relieved from any liability for loss thereafter occurring, and is not liable to the plaintiffs in this action.</p> <p>8. In not affirming the defendant’s seventh point, which was as - follows: None but citizens or residents of the state of Pennsylvania are entitled to the benefit of said seventh section of the Act of May 31st 1841, and it being conceded that the plaintiffs were not citizens or residents of said state, at the time of the destruction of the property, the value of which is sued for in this case, there can be no recovery, and the verdict should be for the defendant.</p> <p>9. In refusing to charge as requested in defendant s first point, which was: That the seventh section of the Act of Assembly of May 31st- 1841, is in contravention of the constitution of the United States, and therefore void.</p> <p>10. In refusing to charge as requested in defendant’s second point, which was: That the seventh section of the Act of May 81st 1841, is void, being in violation of the constitution of the state of Pennsylvania.</p> <p>’ll. In refusing to charge as requested in defendant’s third point, which tvas : That the first section of the Act of March 20th 1849, extending the seventh section of the Act of May 31st 1841, to Allegheny county, is in violation of the constitution of the United States and of the constitution of Pennsylvania.</p> <p>12. In refusing to charge as requested in the fourth point of defendant, as follows : That by the adoption of the new constitution of Pennsylvania, which took effect and became operative on the first of January 1874, the said seventh section of the Act of Assembly of May 31st 1841, was abolished and rendered null and void, as was also the first section of the Act of March 20th 1849, extending it to Allegheny county.</p> <p>The verdict was for plaintiffs for $3131.39, and after judgment, the defendant took this writ, and alleged that the court erred as set forth in the foregoing assignments of error.</p> <p>The case of the County of Allegheny v. Webb, was argued with this case. The eases were substantially alike, except that Webb & Son were not residents of Pennsylvania; and it was contended, that the Act of 1841 .did not give to them a right of action.</p>

<p>1. K. conveyed to Y. several tracts of land, reserving “ all the pine timber on said tracts, together with the right and privilege to cut, remove, take and carry away the same or any part thereof at any and all times ; also the right of ingress and'egress at any and all times, for the space or term of twelve years from the date above written, for the purpose so as aforesaid.” Held, that the parties having fixed their own time for the removal of the timber, the right of entry as well as the right of property therein fell with .the expiration of that time.</p> <p>2. The limitation upon the right of entry was a limitation upon the exception itself. It-was a reservation of the timber for twelve years and no longer. After that time the trees remaining passed with the grant of the soil to which they were attached.</p>

<p>Appeal from the Court of Common Pleas of Lycoming county: Of May Term 1879, No. 210.</p> <p>Appeal of Oliver Watson and Oliver Watson, Jr., in right of his wife, formerly Ella R. Potter, from the decree of the court making distribution of the proceeds of the sheriff’s sale of the real estate of Joseph H. Wonderly and of Ozias Potter, deceased, in the hands of Albert T. Nichols, his administrator.</p> <p>John B. Hall, being the owner in fee of certain real- estate known as the “Foundry Property,” in the city of Williamsport, in 1864, entered into articles of agreement to sell the same to Albert T. Nichols. Nichols in 1866 sold the same to Ozias Potter and Joseph H. Wonderly, there being at the time a balance of $16,000 due Hall from Nichols on the aforesaid agreement. On the 81st of October 1866, Hall executed and delivered to Potter and Wonderly direct a deed of the premises, and the same day Potter and Wonderly gave to Hall bonds for the $16,000 due him from Nichols, and a mortgage on the premises to secure the same; and to Nichols, the same day, bonds for the sum of $24,000, and a mortgage on the same premises to secure the same. The deed and two mortgages were filed for record on the day of their execution.</p> <p>The bonds to Hall were all paid by. the obligors, except one of $4000, which was assigned by Hall to E. L. Piper, and by Piper to Mrs. Catherine J. Packer. Three of the bonds given to Nichols, amounting to $6000, were paid by the obligors. Of these, one bond of $4000 had been assigned by Nichols to Robert Porter, in 1867, as collateral security for a loan of $5500, for which Nichols had given his note, with endorsers, and which note, with the interest thereon, remains unpaid, and said bond was assigned by Porter to Oliver Watson, on the 9th day of May 1878. The remaining seven bonds of $2000 each were assigned by Nichols to E. L. Piper, December 9th 1867, and re-assigned by Piper to Nichols, in 1874 and 1875; and subsequently thereto, to wit, on the 29th of May 1875, two of said bonds were assigned by Nichols to the City National Rank of Williamsport, as. collateral security for a loan to said Nichols upon his note, with endorsers, which note remains unpaid; and five of said bonds were assigned by said Nichols to William H. Armstrong, and by him to the York County National Bank as collateral security, for a loan of $10,000 obtained by Nichols on his notes, endorsed by said Armstrong and others, and which note remains unpaid and the endorsers never released. The bonds were assigned to Armstrong to obtain his endorsement of Nichols’s notes, and assigned by Armstrong to the York County National Bank after failure of Nichols to pay his notes.</p> <p>On September 6th 1869, Ozias Potter, one of the obligors in the said bonds and mortgages, and owner of the undivided one-half of the property described in the aforesaid deed and mortgages, died, leaving to survive him a widow and an adopted daughter, Ella R., since intermarried with Oliver Watson, Jr., having made a will which was declared invalid, on issue thereon, and on the 8th of October 1870, letters of administration de bonis non were granted to the aforesaid A. T. Nichols.</p> <p>On the 11th January 1871, Joseph H. Wonderly, the other obligor in said bonds and mortgages, and owner of the other half part of the said premises with his wife, by their deed dated January 10th 1871, conveyed to said Nichols the one undivided half part thereof. This conveyance 'was expressly made subject to the payment by Nichols of the balance of the debt and interest due upon both of the aforesaid mortgages, and the fact that part or all of the bonds thereby secured had been assigned to third parties was distinctly recognised. This deed also contained a covenant by Nichols “to assume and pay the balance of the debt and interest owing upon said two mortgages and bonds secured thereby, and to save harmless the said Wonderly from any liability for the same;” and it was moreover expressed that the performance of said covenant and by said Nichols was a part of the consideration of said deed, and the deed was executed by Nichols as well as the grantors. Mrs. Catherine J. Packer issued a scire facias upon the Hall mortgage, obtained a judgment, and issued a levari facias to May Term 1878, and then assigned the judgment to Oliver Watson. The sheriff sold the property to Oliver Watson for $9800, for which sum he returned he had taken the receipt of Oliver Watson under the Lien Creditor Act, Mr. Watson claiming that the fund should be appropriated first to the payment of the Hall mortgage, balance in full of debt and interest $5016.57, and the remainder should be applied to the bond which had been assigned by Nichols to Porter and by Porter to him, the said Watson, and so the auditor reported. To this report exceptions were filed on the 31st of December 1878, by the City National Bank and the York County National Bank, and the case referred back to the auditor to make a new distribution on the principles indicated in the opinion of the court, to wit, that Nichols, by virtue of his succession to Wonderly’s half interest in the property, and having paid off the mortgage, was entitled to subrogation as against Potter, but confirming the distribution so far as applied to the Hall mortgage. The auditor made a second report, distributing the $4500 pro rata, upon the whole of the Porter bond and the one-half of the amount of the bonds held by said banks. To this report Oliver Watson and Oliver Watson, Jr. filed exceptions on the 18th of April 1879, alleging as error that the auditor erred in not distributing the whole balance of $4475 to the Porter bond; that the distribution was not in accordance with the law and .the facts, and that there was error in the court in refusing to confirm the first report and in referring the same back to the auditor.</p> <p>On May 9th 1879, the final decree of the court was filed, decreeing a distribution different from that made by the auditor, but not as claimed by Oliver Watson, overruling the exceptions, except to the extent that the distribution made by the auditor was changed by the opinion as filed by the court, and confirming the report of the auditor absolutely. By this decree the $4475 are distributed as follows:</p> <p>One-half thereof to the Porter bond held by Watson, $2237.50 And of the remaining one-half, to wit, $2237.50, to</p> <p>Oliver Watson on the Porter bond, ... 280.46</p> <p>$2517.96</p> <p>To the bond held by City National Bank, - - 579.47</p> <p>To the bond held by York County National Bank, - 1377.57</p> <p>$4475.00</p> <p>Erom,which final decree Oliver Watson and Oliver Watson, Jr., took this appeal.</p>

<p>1. The modification of orders in desertion cases, whether the proceedings are under the general law or the Act of 1S67, are in the discretion of the Court of Quarter Sessions, and the allowance may ho increased or diminished from time to time to suit the changed circumstances of the parties, or for sufficient reasons may be revoked altogether, and such action is not reviewable in the Supreme Court.</p> <p>2. The surety of one who was ordered to pay a certain amount per week for the support of his wife and child, took a rule upon the Commonwealth to show cause why the surety should not be permitted to surrender the body of the defendant and be released from his recognisance, which rule the court made absolute. Held, that such order was within the recognised power of the court, and it must be presumed that there was a sufficient reason therefor.</p>

<p>1. In an action of replevin for a distress for rent, there can be no such thing as an avowry or recognisance, while the goods are in the defendant’s possession. If he claims as owner, that claim is inconsistent with the allegation that the property was seized as a pledge for rent in arrear, for .this is a confession that the goods are owned by the tenant; if on the other hand he depends on his own right to distrain, he can have no standing unless he has surrendered the property, in obedience to the command of the writ.</p> <p>2. In an action of replevin, the plaintiff, in his narr., charged that the defendant did and still does retain the goods against gages, &c. The defendant made cognisance, and the plaintiff, in answer, pleaded that the goods seized were not distrainable and there was no rent in arrear. Held, that as the declaration was in the detinet, the cognisance was bad and must so have been pronounced on demurrer. Held, further, that this defect was not cured by plaintiff, in his replication, traversing the facts in the cognisance.</p> <p>3. In this action the appraisement made for the plaintiff, under the Exemption Act, is not evidence of the value of the goods ; neither is the price obtained by the defendant for the goods at private sale admissible to fix the value of the property in suit.</p> <p>4. That the judgment, in such a case, is in excess of the value of the goods, as set forth in the writ and the narr., is of no consequence, as it may be cured by amendment, even in the court of review.</p>

<p>1. II. and L. sold to G. a tract of land. To secure tlie purchase-money G. gave them certain bonds and a mortgage. He paid all the bonds but one.</p> <p>L. assigned his interest in this one to H., and II. assigned his interest therein to O. On the refusal of G. to pay the bond, a scire facias was issued on the mortgage in the names of II. and L. to the use of C. The latter died after suit brought and her administrator was substituted. Held, that G. was not competent as a witness and was properly rejected.</p> <p>2. L., one of the legal plaintiffs, was called by the defendant to prove matters that occurred while the legal plaintiffs were the owners of the bond. Held, that he was competent, under the Act of March 27th 1865, and the second section of the Act of 1869.</p>

<p>Error to the Court of Common Pleas of Warren county: Of May Term 1879, No. 196.</p> <p>Assumpsit by Thomas Clark against S. P. Johnson, impleaded with George P. Orr, lately trading as Hazeltine, Orr & Co., upon a promissory note given by the firm.</p> <p>A trial by jury was dispensed with, and the case submitted to the court (Wetmore, P. J.,) who found the facts as follows:</p> <p>The firm of Hazeltine, Orr & Co. consisted of Samuel P. Johnson and George P. Orr. Ezra Hazeltine had once been a member of the firm, but had parted with his interest before the debt in suit was contracted, and his name was retained after his actual interest in the firm had ceased. The present firm was organized in 1871, and George P. Orr was the acting member. The business was dealing in drugs, paints, oils, glass, &c., at retail. The firm sometimes, according to the evidence of E. T. Hazeltine, sold goods at wholesale. The claim in suit is for a note of $507.78, dated Warren, Pennsylvania, January 1st 1877, due five months from date at First National Bank, Warren, Pennsylvania, payable to the order of plaintiff.</p> <p>The consideration for the note was cologne spirits, purchased as follows:</p> <p>1875, February 11th, 1 barrel cologne spirits, 87 gallons @$1.15 . . '......$100.57</p> <p>March 6th, 1 barrel cologne spirits, 85.5 gallons @$1.25,....... 106.31</p> <p>March 22d, 1 barrel cologne spirits, 87.88 gallons @ $1.25,....... 109.85</p> <p>April 12th, 1 barrel cologne spirits, 85.90 gallons @$1.25,....... 107.38</p> <p>Interest, ........ 83.73</p> <p>$507.78</p> <p>Between September 2d 1874, and February 17th 1875, inclusive, three barrels of alcohol had been purchased, and they were settled and a note, given for the same, due February 4th 1876, which was paid. There had been dealings in the way of purchasing alcohol by the firm from plaintiff for years before George P. Orr became a member of the firm. The cologne spirits, the consideration for the note in suit, was not entered on the books of defendants in the usual way when they made purchases, and no entries were on the books of defendants indicating these purchases ' or the consideration paid therefor. The three barrels of alcohol were duly entered on defendants’ books, and the payment of the note for the same closed the account between the parties as far as defendants’ books disclosed the dealings between them. Cologne spirits was shown to be deodorized alcohol. Retail druggists keep it in small quantities, generally from one to five gallons. It is used for reducing extracts and manufacturing cologne, and defendants did not use over five gallons per year. Except the amount in suit, none was ever shown to have been bought by defendants from plaintiff.</p> <p>George P. Orr had another place where he was carrying on business in the name of E. D. York & Co. The cologne spirits in suit went into that concern, and S. P. Johnson, the defendant, had no knowledge of the firm or business of E. D. York & Co., until after the transactions out of which the claim in suit was given.</p> <p>The item March 6th 1875, for $106.31 was on a written order of Hazeltine, Orr & Co., signed by George P. Orr for the firm, dated Buffalo, New York, and directed the shipment of one barrel cologne spirits to E. D. York & Co., and bill to Hazeltine, Orr & Co.</p> <p>The following were the court’s conclusions of law from the foregoing statement of facts’:</p> <p>“1. The purchase by George P. Orr for defendants February 11th 1875, and March 22d and April 12th of same year, were within the scope of the business transacted by the firm in the usual course of dealing, and hence within the scope and power which one member had to bind the firm for the purchase of goods.</p> <p>“2. The purchase made by George P. Orr in the name of the firm, March 6th 1875, directing the shipment to be made to E. D. York & Co., and the bill to be made to Hazeltine, Orr & Co., cannot be sustained as a valid claim against Hazeltine, Orr & Co.</p> <p>UE. D. York & Co. was George P. Orr, and it was therefore a purchase on his own account, and the goods were delivered to him, and never came- to possession of defendants.</p> <p>“ The transaction was out of the usual course of dealing between the parties, plaintiff and defendants, and the legal duty was in plaintiff to know to whom he was selling the goods. He could not sell and deliver goods to George P. Orr on his order and charge them to defendants; for the same reason he could not sell and deliver them to E. D. York & Co., which is another name for George P. Orr, and charge the amount to defendants.</p> <p>“ There is therefore deducted from the note the item of $106.31, dated March 6th 1875, with interest on the same as computed in the bill annexed to the plaintiff’s depositions, and this leaves the balance of the note due at maturity $379.99, with interest on the same from June 4th 1877 (the date of the maturity of the note), to March 3d 1879.</p> <p>“ It is therefore ordered that judgment be entered in favor of plaintiff and against defendants for the sum of $419.88, with interest from March 3d 3879.”</p> <p>The plaintiff excepted to the findings of the court as follows:</p> <p>1. In not granting the plaintiff’s motion to strike out testimony and evidence. 2. In their findings of fact in considering the defendants’ books of account as evidence, said books not being introduced to show any account, credit, or set off against the plaintiff, but merely the manner in which defendants kept their account with plaintiff for goods purchased of him. 4. In finding as a fact that the cologne spirits in suit went into the concern of E. D. York & Co., there being no evidence of that fact, except as to the item of March 6th 1878. 5. In their second conclusion of law, and in finding that the item of March 6th 1875, was not a valid claim against Hazeltine, Orr & Co., and that the transaction was out of the usual course of dealing, there being no evidence that the plaintiff ever knew that George P. Orr had any connection with E. D. York & Co. 6. In deducting anything from the amount of the note in suit.</p> <p>The court overruled the exceptions, and entered' judgment according to the decision previously filed. The plaintiff then took this writ and alleged, inter alia, that the court erred in overruling the above exceptions</p>

<p>Error to the Court of Common Pleas of Mh county: Of May-Term 1879, No. 67-</p> <p>Debt on an official bond by the township of Ridgway against V. S. Wheeler, Robert I. Campbell and Isaac Horton.</p> <p>W. II. Schram and Virgil S. Wheeler were supervisors for the township of Ridgway, for the year 1872-3. As such, they levied road, additional road and sidewalk taxes. Under the special laws relating to Elk county (see Pamph. L. 1855, p. 240, and Pamph. L. 1864, p. 157), it is provided that these taxes “shall be collected by the constables of the respective townships, upon warrants and duplicates issued by the supervisors.” In pursuance of these laws, Schram and Wheeler, as supervisors, tendered the duplicates of these taxes to the constable, H. II. Wensel, who declined to accept them. They then appointed one of themselves, Virgil S. Wheeler, collector of said taxes, placing in his hands the duplicates, with their warrants as supervisors attached. Wheeler accepted the appointmént, and filed with the town clerk his bond, as collector, in the penal sum of $6000, with Robert I. Campbell and Isaac Horton, as sureties. This bond was approved by the said Wheeler, and the said Schram, as supervisors. Wheeler proceeded to collect by virtue of this appointment, and by himself and .his deputy, D. F; Farrand, did collect a large amount of said taxes. A part of the taxes so collected ivas never paid over to the township. The balance so collected, and in the hands of Wheeler and his deputy, was shown to be $85.91 on the additional road tax, and $138.94 on the sidewalk tax, making a total of $224.85. Charging the said supervisors with the whole amount of said duplicates, and crediting the payments to the township treasurer, the township auditors found a balance due the township of $367.81 on the additional road tax, and $872.11 on the sidewalk tax. This suit was brought on the bond given by Wheeler, as collector.</p> <p>In charging the jury, the court (Wetmore, P. J.), inter alia, said: “The proper manner for the supervisors to proceed was to assess the tax for the payment of the debt of the township, and also to assess the tax for the purpose of building sidewalks, and make out their duplicate in due form, directed to the constable of the township, who, by law, was the collector of the taxes to be thus assessed. In this case, we learn that the constable declined to take the duplicate which was offered him. We will not now discuss the question as to the obligation upon the constable at that time. It is not material to the decision of this question. We learn that this bond was executed by the supervisors and by Campbell, and a warrant for the collection of the taxes was issued to Wheeler, one of the supervisors. There was no authority in law to issue that warrant to Wheeler. The money raised by the special road tax did not belong to the supervisors. It was not to be laid out upon the roads of the township. It was specially directed to he assessed and collected for the purpose of paying creditors. This suit is brought upon a bond executed by the supervisors, with Campbell as surety. We say to you that the supervisors had no jurisdiction over those taxes, so far as the collection of them was concerned. That duty devolved upon another officer, to wit, the constable. They had no authority to appoint either one of their own number, or any third person, as collector. [The bond given by the supervisors, with Campbell as surety, for the performance of that duty, was a nullity. It did not authorize the supervisors to collect the taxes, and he had no authority to go to persons assessed and enforce the payment. We say to you that there is no obligation on the part of these defendants upon the bond on which this suit was instituted. Your verdict, under the ruling, should be for the defendants.”]</p> <p>The verdict was in accordance with this instruction, and after judgment plaintiff took this writ and, inter alia, alleged that the court efred in the portion of the charge noted above in brackets.</p>

<p>Error to the Court of Common Pleas of Warren county: Of May Term 1879, No. 52.</p> <p>Case by Stephen Mead against the Dunkirk and Allegheny Yalley Railroad Company, to recover the value of a cow killed by one of defendant’s trains.</p> <p>By a special act, approved March 28th 1868, Pamph. L. 514, railroad companies in Warren county are required to fence their roads “ for the protection of farmers and owners of cattle, &c., residing along the line of such railroads,” and also, “ to construct sufficient cattle-guards at all road-crossings;” and by the Act of April 17th 1869, the failure to perform these duties, renders the railroad company liable for the value of cattle, &c., injured in consequence of such neglect. Mead lived about half a mile from the railroad company’s track and owned no land along its line, but pastured his cow in the field of one Dalrymple, south of and near the railroad station, but not adjoining its land or right of way. Between this pasture and the railroad company’s land at the nearest point was the public highway, fenced on both sides, and betxveen this pasture and the railroad track at the point where the cow was killed a fenced field intervenes. The public road crosses the railroad just east of the depot. There is a side track extending some distance east and west of the depot, and the land east of the depot is used for yard and shipping purposes, piling ties and lumber, loading and unloading freight, and the track through this yard and east of it nearly to the bridge across Andrew’s run, as well as west across the- public road, is used by the railroad company in switching, arranging and making up trains, and more or less of this work is done by night. To put in cattle-guards where the public road crosses the railroad, or at any point where they would be crossed in switching and making up trains, it was alleged, would seriously endanger the lives of the trainsmen and railroad employees. The entire south side of the railroad company’s right'of way and yard, the side toward the Dalrymple pasture, is well fenced. The entire north side of the right of way and the yard are also well fenced. The part of the west end of the company’s yard north of the railroad track, is left unfenced for the convenience of the public, in passing in and out with freight, ties, &c. The plaintiff’s cow is supposed to have escaped in some way from the pasture into the public highway, and to have strayed thence through defendant’s yard, on to and along the track east toward the bridge, and was struck a few rods west of the bridge.</p> <p>At the trial before Church, P. J. (of the Thirtieth Judicial District), the defendant submitted, inter alia, the following points, to which are subjoined the answers of the court:</p> <p>1. The obligation on the defendant, under the statute, to make and maintain fences, applies only as against owners or occupiers of the adjoining close; and the plaintiff not residing nor occupying land along the line of defendant’s road, cannot assert this obligation nor recover for any loss incurred by reason of any neglect thereof by defendant.</p> <p>Ans. “ First part to semicolon answered in affirmative. Second part in negative, if the jury believe that plaintiff was then occupying Dalrymple’s farm as laid in map in evidence.”</p> <p>2. The defendant was not bound to build fences, or put in cattle-guards at any point where,.to do so, would endanger human life, or seriously impede the operations of the road; and is not liable for injury to any cattle straying on its tracks by reason of the lack of fence or cattle-guards at such points.</p> <p>Ans. “ As per general charge.”</p> <p>In the general charge, the court, inter alia, said: [“ Mr. Mead testified that he had rented pasture of Mr. Dalrymple, and kept his cow there, and turned her in that day, and he knew nothing else of her until she was killed. If that be so, and you believe that his cow, within the meaning of this act, did casually break out of its proper enclosure upon the highway, he is guilty of no negligence in the cow being upon the highway.] * * * [This railroad was constructed after the Act of 1868 was passed, and they were required to construct sufficient fences and cattle-guards in the manner pointed out by this act. In default of that, the owner of any cattle may recover damages for the killing, in consequence of such a cattle-guard not having been placed in the place pointed out by the Act of Assembly.] It is alleged on the part of the railroad company, that this plaintiff does not come within the provisions of this Act of Assembly, because he did not occupy the land along the railroad track. It appears by this draft and by evidence, that he was pasturing his cow in Dalrymple’s pasture. This pasture comes down, as appears by this draft, to two highways ; one of the highways running across the railroad, right at the depot. It appears in evidence, that the defendant’s track is fenced the whole distance, according to the Act of Assembly, except at a point opposite the depot, where the track-yard of the defendant’s railroad abuts against this highway, and there is no ■ fence there, neither is there any cattle-guard. There is a fence at the east end of the yard proper where there are switch-gates, but there are no cattle-guards; and it is evident that this beast had gone down through towards the bridge easterly, and past the yard proper, and there it Avas killed..</p> <p>[“Noav, we say to you, that it was the duty of this railroad company to build a cattle-guard, either at this railroad crossing, or at the eastern end of their yard.] If it was impossible for the railroad company to transact its ordinary business by maintaining this fence at the road crossing proper, it was their duty to put a cattle-guard at the eastern end of the yard. .If you believe they could do so without seriously interfering with the ordinary business, they Avere guilty of negligence, or rather of violation of the Act of Assembly in not doing so. So, in our view of the case, ave cannot answer the defendant’s points exactly, as he has asked us to say.</p> <p>[“We say, that Dalrymple’s field is sufficiently close to the rail- ■ road to come within the provisions of this Act of Assembly.] The simple fact of the highway being between the pasture-field and the right of Avay of the railroad, does not relieve the company from the obligations of this Act of Assembly. If you believe that the exigencies of the railroad business prevented them from building a fence or a cattle-guard immediately at the crossing, they should have built a cattle-guard at the first convenient place.”</p> <p>The verdict was for plaintiff for $62.75. The defendant took took this Avrit and alleged that the court erred in the ansAvers to the foregoing points, and in the portions of the charge noted in brackets above.</p>

<p>Error to the Court of Common Pleas of Lycoming county: Of May Term 1879, No. 174.</p> <p>Ejectment by Peter Herdic and others against John Waltman, Henry Waltman and Samuel Titus, for a tract or strip of land between two surveys respectively entitled the “ Jean Brady and Jennet Hepburn” surveys.</p> <p>On June 8th 1792, Jennet Hepburn was granted a warrant to appropriate two hundred acres of land'on William Hammond’s run, including said run, and adjoining land of William Winter, about two miles from the river, in Loyalsock township, (then) Northumberland county. A survey was made May 17th 1793, as containing two hundred and sixteen acres and allowance, calling for an ash as the south-east corner, twenty-one perches east of Hammond’s run, by the plot; thence north eighteen east to white oak one hundred and five (by the figure or draft the course is plotted about north eighteen west)-; thence north forty-five east one hundred and eighteen perches to white oak at intersection of top line crossing Main run and branch, plotted as thirty perches in length, but by measurement on the ground and scale of draft forty-four perches long. The survey, as made on the ground, and as called for in the patent granted April 17th 1794, to Jennet Hepburn, intermarried with Matthew Wilson, is for a course north eighteen east from an ash corner. Jennet Wilson and Matthew Wilson died intestate, leaving five heirs, one of whom, Mary, intermarried with Manning Stevenson. By articles of agreement and deed, the one undivided fifth part of the Jennet Hepburn survey was sold to Samuel Titus, one of the defendants, who took possession of the same, May first 1827, cutting timber up to the line as claimed by defendants, the same year.</p> <p>Plaintiffs claimed under a warrant to Jean Brady, dated November 13th 1792, for two hundred acres, described as adjoining lands of S. Wallis, including Hagerman’s run, in Washington township, one mile south of the Susquehanna river; surveyed May 8th 1794, containing two hundred and four acres. On January 24th 1828, the warrant was sold for taxes by the treasurer of Lycoming •county, to John Yanderbelt, William Harris, Peter Vanderbelt, and Charles Low, -who, with William Wilson, a surveyor and congressman (not related to the William Wilson who was one of the heirs of Jennet Hepburn Wilson), petitioned the board of property for a resurvey of the Jean Brady, alleging it interfered with the Jennet Hepburn survey and others. December 30th 1828, a resurvey was ordered, providing it does not interfere with others, &c. August 27th 1830, a resurvey was made, returned and patented to William Harris, John Yanderbelt', Peter Yanderbelt and Charles Low. This resurvey crosses the south-east corner of the Jennet Hepburn, by giving it its official courses and distances, by twenty-one and three-tenths perches at the south line of the Jennet Hepburn, including Hammond’s run as part of the Jean Brady survey, which ran from the white oak witness at the north-east corner of the Jennet Hepburn tract, and does not close at the ash corner and pine witness at the south-east corner of the Jennet Hepburn survey. The survey as claimed by these plaintiffs in the writ docs not cross Hammond’s run by dropping eight perches on each of the two lines — the south forty-eight west one hundred and ten line (a reverse of north forty-five east one hundred and eighteen) from the upper white oak, thence south twenty-one west ninety-seven and two-tenths'(a reverse of north eighteen east one hundred and five), coming within five or seven feet of the run to a post. The ash corner is shown by the scale on the plot and measurement to be from seventeen to twenty perches eastward from the run. In the year 1832, the owners of the Jennet Hepburn survey amicably divided the Jennet Hepburn survey, leaving the strip of land interfered with by the Jean Brady resurvey undivided, with an agreement among themselves, that whoever of them contended for the same should have the other heirs’ interests therein, as the same belonged to their survey..</p> <p>Titus alleged he used this land for its wood and timber, in connection with his larger purpart or farm, as a wood lot appurtenant, for more than twenty-one years, without any one to gainsay his right thereto. In 1849 he sold a part of it to Joshua Hall, who built a house thereon and cultivated a garden therewith. Henry Johnson purchased his house the next year and occupied the same, and maintained the possession of the whole strip in dispute up to the bringing of this suit, in December 1876, for Mr. Titus, except a quarry, which was worked by Mr. Waltman under agreement with Mr. Titus. In 1852 a suit was commenced in ejectment by Daniel Billman against Titus and his tenants — Hall, Johnson and Hoffman — claiming part of this strip, four acres, more or less, as belonging to the Jean Brady; but this suit was abandoned. The whole of the Jennet Hepburn has been seated for more than sixty years.</p> <p>At the trial, before Cummin, P. J., the plaintiffs put in their paper title, by which.it appeared that they were entitled to that portion of the land surveyed in the Jean Brady warrant which adjoined the lands surveyed in the Jennet Hepburn warrant. The claim of the plaintiffs was confined to the lands surveyed on the warrant of Jean Brady, and they made no claim or title to any part of the lands surveyed on the warrant Jennet Hepburn.</p> <p>The paper title of the defendants related entirely to the lands surveyed on the Jennet Hepburn warrant, and under their paper title they were to be confined in this case to the lands Surveyed on the warrant Jennet Hepburn, and by virtue of their paper title they had no claim upon any lands surveyed on the warrant Jean Brady.</p> <p>In addition, however, to what the defendants claimed on their paper title, they also claimed that Titus, one of the defendants, and under whom the other defendants claimed, had acquired title to the land in dispute by having occupied it for a period of twenty-one years.</p> <p>Plaintiffs proved that Daniel Billman, the former owner of the Jean Brady tract, was dead, and that the legal title to one-half of the land in dispute was still in his heirs, and alleged that they were bound to make title under contract, and bound by a covenant of general warranty in a conveyance of the legal title to three of the plaintiffs of the other half. Defendants offered to prove by Titus, one of the defendants, that he purchased an interest in the Jennet Hepburn survey in the year 1827. That he took possession of the same, and that his possession taken and maintained from that time, under a claim of title of the warrant and survey Jennet Hepburn, included the land described in plaintiffs’ writ up to this line as run by Mr. McHenry from the stone along the brush fence spoken of, &c. That in 1849 he sold a part of this land in dispute to Joshua Hall, and put him in possession of the same. That Mr. Hall and others erected a house and made a garden and other improvements up to this line, as indicated by the stone and the brush fence, and as his agents maintained possession of the entire strip now in dispute for more than twenty-one years, to be followed by evidence of the location up to this brush fence line, recognition by the owners of the part of the Jean Brady adjoining it on the east; this for the purpose of showing his title and possession to the land in dispute.</p> <p>The plaintiffs objected, inter alia, because Daniel Billman, whose estate still holds the legal title as shown by the plaintiffs in this suit, is dead, having in his lifetime conveyed only an equitable interest to the parties, and that the witness, Samuel Titus, being defendant in the issue, is incompetent to testify in this case as to any matters that occurred during the lifetime of Billman. The court sustained the objection, and excluded the witness on the ground of incompetency.</p> <p>The verdict was for the plaintiffs for the land described in the writ. Defendants took this writ, their eleventh assignment of error being the rejection of Titus as a witness on the grounds above stated.</p>

<p>Error to the Court of Common Pleas, of Lycoming county: Of May Term 1879, No. 127.</p> <p>In the court below, The Peoples’ Fire Insurance Company of Pennsylvania, had filed a lien in the nature of a judgment against F. M. Hartshorne & Co., on a premium-note given in consideration of a policy of insurance. This judgment was opened and an issue directed, to try how much was due thereon from the defendants to the plaintiff. The defendants pleaded “ nil debet.”</p> <p>The plaintiff is a mutual insurance company, incorporated by Act of Assembly, March 9th 1843, and by a decree of the Court of Common Pleas of Cumberland county, made April 17th 1871, its name was changed to that which it at present bears. On the 4th of May 1869, F. M. Hartshorne and M. L. Clay, doing business as E. M. Hartshorne & Co., obtained an insurance in this company on a steam planing-mill and fixtures situated in the city of Williamsport, and in consideration thereof, signed and delivered to the company plaintiff a premium note for $2000, bearing interest at the rate of 5 per cent, the interest payable annually in advance, and the principal “ at such times and by such instalments as the board of directors shall demand, and order pursuant to the act of incorporation and rules and regulations of the said company.”</p> <p>By the provisions of its charter, the company had the right to enter a lien in the nature of a judgment for the amount unpaid on any of its premium-notes and to issue an execution for so much as might be due thereon by reason of assessments or interest, on filing a memorandum of such notes and the amounts due thereon in the prothonotary’s office of the county in which the insured property was situated. In pursuance of this right a lien was entered in the prothonotary’s office of Lycoming county, on the premium-note given by Hartshorne & Co., and an execution issued to enforce the payment of their assessments, and the unpaid interest which had occurred on this note. On the application of the defendants, this execution was stayed and rules granted to show cause why the judgment should not be opened and to show cause why the judgment should not be stricken off. After argument on these rules in the court below both were made absolute. A writ of error was taken to the decree of the court making these rules absolute, and the Supreme Court reversed the decree (see report of case 3 Norris 453) making absolute the rule to strike off the judgment, allowing the decree to open the judgment to stand. The record was remitted to the court below, and an issue ivas then formed to try how much was due from the defendants to the plaintiff upon the judgment.</p> <p>When the plaintiff filed its lien, there ivas appended thereto, a certificate, setting forth that certain amounts were due on assessments made on the premium-note of defendants. These assessments were two in number, one of 10 per cent., made on May 13th 1872, and one of 20 per cent, made on January 18th 1873. There was also an item of $270 interest claimed on deposit note and interest on the two assessments from December 18th-1873, forty-five dollars.</p> <p>At the trial before Mayer, P. J., the defendants proposed to prove by a witness, that he had been connected with the Peoples’ Fire Insurance Company and the Cumberland Mutual Fire Insurance Company, for some thirty years; that he became the secretary of the company in 1851, and continued to be secretary until the assignment was made for the benefit of the creditors, on the 5th of March 1878; that this company made assessments upon the 13th of May 1872 and January 18th 1873; that these assessments were for loans contracted prior to the 14th of May 1869, the date of premium-note given by F. M. Hartshorne to this company; that said loans amounted in the aggregate to $40,000, all of which were contracted prior to the premium-note given. They also propose to prove .that in the year 1869, this company made an assessment of $18,653.05, and on the 23d of February 1871, an assessment of $46,787.40, and on the 13th of May 1872, an assessment of $48,345, and on the 18th of January 1873, an assessment of $97,540, making a total assessment of $211,326.05. That the total amount of loans and losses due by the company prior to January 18th 1873, including loans made as' far back as 1865, was but $87,345.99, showing that there was an excess of assessments of $123,981.06 over the total unpaid loans and losses.</p> <p>. This offer was to show, first, that the defendants in this case were not liable for the loans contracted prior to the 14th of May 1869, the date of their premium-note.</p> <p>Second, that the company was guilty of fraud in levying so large an assessment to pay so small an amount of loans and losses.</p> <p>Plaintiff objected to that portion of the offer in regard to the assessment made for the year 1869. Also, to any testimony relative to any assessments other than the two in issue, no matter whether prior or subsequent; that any testimony with regard to any other assessments except those in suit in this case, was clearly irrelevant.</p> <p>The court overruled the objection and admitted the evidence.</p> <p>Defendants .also proposed to show, that statements were issued by the company, sent to the different members thereof, and that they show the amount of the loans and losses that these assessments were levied to pay. This for the purpose -of showing that all the losses, amounting to $41,000, were made prior to the time that Mr. Hartshorne became a member of the company.</p> <p>Plaintiff objected, that the testimony in the case, is that this note was not assessed for anything that occurred prior to that date, and that these statements do not prove, that the assessment was made on this note for the purpose of covering anything prior to the date of the note.</p> <p>Objection overruled and evidence admitted.</p> <p>The plaintiff submitted the following point, to which is appended the answer of the court:</p> <p>On the pleading and evidence in the case, the verdict should be for the plaintiff, for the interest due on the note, the assessments claimed and interest thereon from the time they were severally payable.</p> <p>Ans. “We decline to affirm this point as stated. The extent of the liability of the defendant must be determined by the jury from the evidence.”</p> <p>The following was the third point of the defendant, with the answer of the court thereto:</p> <p>That the defendants are not liable for any loans made prior to May 4th 1869, the date of the premium-note, and no assessment can'be made upon the note to pay the same.</p> <p>Ans. “We affirm this point. Under the rules of law applicable to mutual insurance companies, the defendants would not be liable for any debts or liabilities of the company created prior to the time when they became members of the company, and as all the loans were made prior to that time, they could not be assessed on their premium-note to pay them.”</p> <p>In the general charge the court, inter alia, said:</p> <p>“ No member of the company is liable for any losses or expenses incurred prior to the time that he became a member of the company.</p> <p>“ [In this case the defendants would not be liable upon any assessments made upon the premium-note to pay 'any losses or expenses that accrued prior to the 4th day of May 1869. They were not members of the company prior to that date, and not bound to pay any such losses and expenses.] * * *</p> <p>“ It is alleged by the defendants, that they are not responsible for that portion of the debts of the company which are set forth in an exhibit made by the company in June 1873, and for the payment of which, it is claimed, these assessments of defendants were made. That there is a large number of losses made by the company, as exhibited in their statement, for which the defendants are not liable by the terms of their contract. From this statement an exhibit, dated June 2d 1873, it appears that this company did make a large number of loans from various persons, and the persons to whom these loans are respectively due are set forth in this statement. All of them, I believe, without exception, were made prior to the 4th day of May 1869, the time when the defendants became members of the company.</p> <p>“We are of the opinion, and so instruct the jury, that no member of the company would be liable for any loans made .prior to the time that he became a member.</p> <p>“ Although the company may have borrowed the money for the purpose of paying losses that they had sustained, yet only those members of the company, who were members at the time the losses occurred, and for the payment of which these loans were made, would be liable *to assessment upon their premium-notes. [In this case if the jury find from the evidence, that the assessments of the 13th of May 1872, and of the 18th of January 1873, were levied for the purpose of paying loans which had been made by the com-' pany, prior to the time that the defendants became members of the company, there can be no recovery in this suit for such assessments.</p> <p>“ If you find that any portion of the debts of the company, for which these several assessments were made, including any of the loans set forth in this exhibit of June 2d 1873, they must be thrown out of the computation in making the assessment, for the defendants would not be liable for their payment.]</p> <p>“ [In your verdict you must determine what amount of these assessments the plaintiff is entitled to recover, if at all, and having ascertained that amount, there would be interest upon it from the time the assessments were due and payable.] On the $1600 note there would be interest recoverable, deducting the payments which have been made. "The note bears interest on the $1600, at the rate of 5 per cent, per annum, deducting the payments which have been already made.”</p> <p>The verdict was for defendants, when plaintiff took this writ and assigned for error the admission of the evidence set forth above, the answers to points and the portions of the charge in brackets.</p>

<p>Certiorari to the Court of Common Pleas of Lycoming county: Of May Term 1879-, No. 129.</p> <p>This writ was taken by John S. Bastían, sheriff of Lycoming county, to an order of the court in the matter of a rule on said sheriff to show cause why an attachment should not issue against him for contempt in not answering a rule of said court.</p> <p>The following facts, together with those contained in the opinion of this court, will sufficiently state the case:</p> <p>William Weightman obtained a judgment in the Court of Common Pleas of said county, against Peter Ilerdic, to No. 209, September Term 1878. Upon this judgment an execution was issued to No. 155, September Term 1878, E. D., and by virtue thereof the sheriff sold certain real estate of the defendant, Peter Herdic, specifically described in his return to said writ, for the sum of $46,425. The said real estate was purchased by William Weightman, a lien-creditor of the defendant in said judgment, through his attorney R. J. C. Walker, Esq. A deed was executed, acknowledged in open court and delivered by the sheriff to the purchaser at said sale. This deed was subsequently placed on record. In his return to said writ, the sheriff stated that he had applied said purchase-money as follows: To first mortgage of William Weightman, the sum of $16,036.31, and the balance of said proceeds of sale, after paying certain specific liens and the costs, to wit, $24,988.49, upon a second mortgage of said William Weightman. By this application a number of liens upon the real estate sold, intervening between the said two mortgages of William Weightman, did not receive any of the proceeds of said sale.</p> <p>In an opinion, the court, Mayer, P. J., inter alia, said:</p> <p>“ The Act of 20th of April 1846 provides, ‘ that whenever the purchaser or purchasers of real estate* at Orphans’ Court or sheriff’s sale, shall appear from the record to be entitled, as a lien-creditor, to receive the whole or any portion of the proceeds of said sale, it shall be the duty of the sheriff, administrator, executor or other person making such sale, to receive the receipt of such purchaser or purchasers for the amount which he or they would appear, from the record aforesaid, to be entitled to receive, &c.</p> <p>“ ‘ It shall be the duty of the said sheriff, in all cases where he shall receive the receipt of the purchaser as aforesaid, to state the fact in the return of the proceedings of said sale, and attach thereto a list of the liens upon the property sold, which said return shall be read in open court on some day during the term, to be fixed by the order of courtand if the right of said purchaser or purchasers shall be questioned or disputed by any person interested, the court shall thereupon appoint an auditor, who, after due notice given to the persons interested, in such manner as the court may direct, shall make a report distributing the proceeds of such sale, with the facts and reasons upon which such distribution is made, or to direct an issue to determine the validity of said lien, and all further proceedings shall be stayed until the said issue shall be decided.’ It is not pretended that the sheriff complied with the requirements of this Act of Assembly. The writ was not read in open court at a time fixed by the court, and the other lien-creditors had no opportunity to contest the right of Mr.' Weightman to receive said deed and have the money applied to his liens, to the exclusion of the intervening lien-creditors. The deed was acknowledged in court, regardless of the duty imposed by this act upon the sheriff, and the other lien-creditors had a right to suppose that the sheriff had in his hands the money arising from said sale, applicable to their judgments. Whether a want of compliance by the sheriff with the requirements of the statute will affect the title of the purchaser, is is not necessary now to consider and determine. That the sheriff has been derelict in his duty cannot be controverted. Had the sheriff read in open court his return, and attached thereto a list of the liens upon the property sold, as was his duty, it would have appeared that there were intervening liens upon the property sold entitled to the fund realized from the sale, which had priority over the second mortgage of Weightman. The Act of April 20th 1846, is imperative: ‘It shall be the duty of the sheriff.’ Having neglected to comply with the positive^ requirements of this Act of Assembly, the sheriff is answerable to the process of this court for his neglect in this particular, and as the lien-creditors of said Peter Herdic, who have judgments intervening between, the first and second mortgage of said Weightman, have had no opportunity to contest the right of said Weightman to have the entire proceedings of said sale applied upon his liens, and as it is not disputed that there are intervening liens upon the property sold, between said two' mortgages, and these lien-creditors claim that they are entitled to be paid from the proceeds of said sale, it is ordered that the sheriff pay into court, within ten days from notice of this order, a sufficient amount of the proceeds of said sale to cover the debt, interest and costs of the judgments that intervene between the two mortgages of the said Weightman, and an auditor is hereby appointed to distribute said fund, when paid into court, together with the fund already paid into court which arose from said sale. The sheriff cannot shield himself behind the return made to said writ No. 155, September Term 1878. He has failed to discharge a duty imposed upon him by the statute, and it is our duty to enforce a compliance. Upon a failure to comply with this order, an attachment is directed to issue against the sheriff.”</p> <p>Bastían took this writ, and alleged that the court erred, 1. In granting a rule on the sheriff to return his writ and pay into court the money arising from the sale of the real estate of Herdic. 2. In granting the rule to show cause why an attachment should not issue against said sheriff for contempt in not answering the foregoing rule. 3. In deciding that the return Avas made under the provisions of the Act of April 20th 1846. 4. In making the order to bring so much of the proceeds of said sale into court to cover the intervening judgments under penalty of attachment. 5. In not discharging the rule for an attachment.</p>

70. In equity. Bill in equity filed by the Rev. M. P. Stack against the Rt. Rev. William O’Hara.

25. On the 8d of January 1876, Thomas A. Trout, administrator of Richard Bryan, issued a writ of foreign attachment in assumpsit against John M. Bryan, in which the sheriff -was directed to attach certain real estate, and to summon the defendant and said Trout as garnishees. In the praecipe for the writ, Trout was described as the owner of the premises.

<p>At the time a mortgage was recorded, there was no prior lien against the-premises ; subsequently, however, a mechanic’s claim was filed, and it was alleged that the building was commenced prior to the mortgage and that the lien of the claim antedated the mortgage by reason thereof. The purchaser of the premises at sheriff’s sale offered parol evidence of this fact, so as to show that the lien of the mortgage was divested. Held, that the court properly rejected this evidence; that as the bidder at the sheriff’s sale is not bound to look beyond the record, neither has he any right to affect his relation to others by any such evidence, and that the date of the filing of the lien was conclusive as to all parties.</p>

<p>Error and certiorari to the Court of Common Pleas of Columbia county: Of May Term 1879, Nos. 151 and 152.</p> <p>The venue in this case was changed from Lycoming to Columbia county, under the. provisions of the Act of March 30th 1875, Pamph. L. 35.</p> <p>The writ of error was taken to review the action of the court in making an order upon Daniel Longsdorf, treasurer of the city of Williamsport, directing him to pay the overdue interest on certain bonds of said city, and the certiorari to the action of the court in granting an attachment against said treasurer for refusing to obey said order.</p> <p>The facts, in substance, were these: In the case of City of Williamsport v. Commonwealth ex rel. Bair and Shenk, 3 Norris 487, the Supreme Court made a decree, wherein the treasurer of the city of Williamsport was ordered to apply any money in the treasury of said city, not otherwise appropriated, to the payment of the accrued interest, or, overdue coupons, on certain bonds of said city known as “series A.”</p> <p>On November 3d 1877, a peremptory mandamus was issued by the Court of Common Pleas of Columbia county, directed to the councils of the city of Williamsport and the treasurer thereof, in pursuance of said decree. This writ was returnable December 3d 1877, and on that date was returned duly served.</p> <p>On December 3d 1877, the court issued an order to restrain said treasurer from paying out any money in his hands. On December 12th 1877, the court rescinded so much of this order as would leave the treasurer free to pay out moneys for the necessary current expenses of the city. On January 4th 1878, the court again granted a rule on the treasurer to show cause why he should not be restrained from paying out moneys. On March 13th 1878, the court discharged this rule on the ground that from the testimony taken, it appeared that the money in the treasury was not more than sufficient to meet the current expenses of the city, and because the city officials had testified that councils were proceeding to levy and collect the tax required by the mandamus.</p> <p>In May 1878, the city councils did levy a tax, but made no provision whatever therein, for the payment of the overdue interest, or even for the payment of interest on the city bonds, which was falling due in 1878, but proceeded to appropriate the' whole of this tax to general city purposes. No proceeding was had to obey the mandamus until September 1878, Avhen an ordinance was passed under the provisions of the Act of March 22d 1870, Pamph. L. 535, to levy a special tax to pay the overdue interest. No duplicates, however, were placed in. the treasurer’s hands for collection, and no effort made to collect this tax; when, on February 11th 1879, a rule was granted on councils and the treasurer, to show cause .why the latter should not apply the amount in his hands to payment of the overdue interest on the bonds in question. The city councils and treasurer both filed answers, and it appeared from the evidence .of the treasurer and city controller, that the current expenses for the year would not exhaust the whole fund in the city treasury. Upon these facts the court below made an order, March 10th 1879, that the treasurer pay out of the moneys in his hands, the sum of $8000 on the overdue interest, on the ground, first, that it was raised by a tax levied long after the peremptory mandamus was issued, and was not appropriated till May or June 1878, and therefore should be paid on this judgment; and, second, that it would still leave sufficient funds in his hands to pay the running expenses of the city to the end of the fiscal year, April 1st 1879.</p> <p>To this order the defendants took this writ. They also alleged that the court erred in making said order, because of want of jurisdiction, the Act of March 30th 1875, providing for change of venue, having no reference to proceedings by mandamus.</p> <p>The city treasurer did not comply with the order of the court, but filed an answer, which, inter alia, set forth that respondent was entitled to a hearing and an opportunity to cross-examine witnesses, and to rebut the evidence offered in support of the ap]ffication; that respondent has no interest in the payment of the interest, other than as city treasurer, and that under the advice of the city solicitor, respondent had required relators, as well as other parties holding coupons, to give the number of the bonds, the names of the owners, and from whom the title to the same was derived, with the view of presenting the same to councils to see if there was any specific defence to the same, as respondent was notified by the authorities of the city of Williamsport, that there was such defence to the payment of a large number of these bonds marked ‘‘series A;” that respondent has paid judgments recovered on said coupons maturing prior to November 3d 1877, amounting to $2999.29, under the advice of the city solicitor, and that the balance of the $8000 he has in his hands subject to the order of the court. On the 29th March 1879, the court ordered an attachment to issue against the treasurer for contempt of court, unless on or before the 3d day of April following, he should pay $5000 upon those coupons maturing prior to November 3d 1877, which should first be presented for payment under the order of March 10th 1879.</p> <p>The certiorari in this case was then taken to review the action of the court in awarding this attachment. The $5000 remained in the hands of the treasurer to await the judgment of the supreme court.</p>

<p>.1. An unrecorded mortgage can take nothing as against judgments in point of law, nor is it entitled to any preference in equity. If it is it must be by bringing home to the owners of the judgments actual notice of the existence of the unrecorded mortgage, not only before their respective liens attached, but before the debts on which they are founded were contracted.</p> <p>2. An honest judgment voluntarily given by a husband to secure a debt owing to his wife, is just in law. For the prevention of fraud, clear and satisfactory proof of a wife’s claim against her husband is exacted in a degree not required of others ; but when established she is entitled as another would be.</p> <p>3. In the distribution of the proceeds of á sheriff’s sale of real estate, a judgment ought not to be prejudiced by costs accrued on a posterior lien, which was unnecessary to sale. Costs on writs set aside for cause or consent where a creditor is not in fault or consenting, cannot be paid out of money belonging to said creditor.</p> <p>4. The rights and disabilities of married women^and the respective rights of property of husband and wife, discussed by Trünkey, J.</p>