Volume 91 — Pennsylvania State Reports

<p>Error to the Court of Common Pleas of York county: Of May-Term 1878, No. 78.</p> <p>Assumpsit upon a promissory note by William McSparran, administrator of John G. Williamson, deceased, against Thomas Neeley. The declaration filed January 19th 1875, set forth'the plaintiff’s cause of action as founded on a promissory note drawn by said John G. Williamson, deceased, on the 24th of January, 1872, bearing date by mistake, January 24th 1871, for $737.37, to J. L. Lawrence, or order, in ninety days after date, which said note the said deceased, in his lifetime, delivered to said Lawrence who before the maturity of said note, endorsed and delivered the same to plaintiff for value. The declaration also contained the usual common counts in assumpsit.</p> <p>The defendant, on February 12th 1876, filed an affidavit of defence, alleging “that the deponent was a brother-in-law of deceased and attended to most of his business, in his lifetime, and denying that deceased was ever indebted to said Lawrence in the sum of money mentioned in said promissory note, and alleging that said note was procured by fraudulent means; that at the time it is pretended by plaintiff that said note should have been dated, to wit, January 24th 1872, instead of the day it bears date, in the year 1871, the said Williamson was incapacitated from doing business, by reason of intemperance, and was partially blind and unable to read, and otherwise unfit to transact business; that shortly before that time, the said Lawrence and Williamson had squared accounts between them, and that the indebtedness of Williamson to Lawrence, at that time, was but a small amount; that Williamson died shortly after that time, and between that time and the time of his decease viz.: February 22d 1872, could not have contracted the amount of indebtedness mentioned in the said promissory note, or made any contract from which such liability could arise; that plaintiff took said note from the payee, after it became due, according to the date of the same, and which was, on its face, overdue, about nine months; that the said promissory note bearing date a certain day was notice to the plaintiff thereof, and that he cannot now set up another date, whether by mistake or otherwise; that this should have put plaintiff upon inquiry as to the execution of the note from the maker of the same as well as the payee, and by that means have ascertained the truth as to the genuineness of said note.”</p> <p>The case by the agreement of the parties was referred to a referee, under the provisions of the Act of Assembly, entitled “An act in relation to pleading and judgment, voluntary arbitration and additional return days for writs, in the Courts of Common Pleas in the Nineteenth Judicial District of Pennsylvania, and the practice of the said courts therein,” approved April 9th 1868.</p> <p>From the evidence the referee found the following facts:</p> <p>John Grier Williamson, on the 24th of January 1872, executed and delivered to one J. L. Lawrence a promissory note, of which the following is a copy :</p> <p>York, Pa., Jan. 24th 1871.</p> <p>Ninety days after date I promise to pay to J. L. Lawrence, or order, seven' hundred and thirty-seven dollars and thirty-seven cents, for value received.</p> <p>J. G. Williamson</p> <p>Before the maturity of this note, Lawrence, the payee, endorsed and delivered the same to Thomas Neeley, who gave to Lawrence for said note $500 in currency. John G. Williamson, before he acquired habits of intempeance, was a man of intelligence and vigorr ous intellect. During the latter period of his life, his vision became, by reason of gross intemperance, impaired, his body partially paralyzed, and his mental powers weakened. When, however, he was sober, he was capable of transacting his business affairs in a proper manner, until within a short time previous to his decease. Within two or three months from the time of his decease he transacted business, in a methodical way, with a number of different parties, and within six or seven weeks prior -to his death, he directed a person to whom he was indebted ■ to write an order for the payment of money, which he signed, but before signing required the spelling of a word in the order to be corrected.</p> <p>On the morning of January 24tli 1872, Lawrence came to the house of Williamson and had with him a number of gallons of liquor. Williamson was sober early in the morning when Lawrence was there. Williamson, Lawrence and another drank together. Williamson was pretty drunk. Lawrence wanted his note. Williamson said he could not see to write. Lawrence drew the note himself. Williamson said he would sign the note mechanically. The note was read by Lawrence. The note called for thirty-seven dollars and some odd cents. Williamson asked to hear it read. By the time Lawrence went away, Williamson was very tight— drunker than he was before. It does not appear that the plaintiff, when he purchased the note from Lawrence, had any notice of the facts and circumstances attending the making and execution thereof. Williamson died on February 22d 1872, and letters of administration on his estate were granted to William MeSparran, the defendant.</p> <p>Exceptions were filed to the report of the referee, which the court dismissed and confirmed the report.</p> <p>The following assignments of error will show what these exceptions were and how the various questions were raised:</p> <p>1. The referee erred in finding as a fact in the case that before the maturity of the note Lawrence, the payee, endorsed and delivered the same to Thomas Neeley, who gave to Lawrence for said note $500 in currency.</p> <p>2. In finding that the plaintiff is a bona fide holder for value, without notice of the fraud.</p> <p>8. In stating the questions of law involved in the case to be, whether the note, according to its face being overdue, was sufficient to excite suspicion and put plaintiff upon inquiry, and also whether the date of the note may be proved a mistake; and ruling said questions separately in favor of the.plaintiff, whereas the question of law involved is, whether the face of the note showing it to be upwards, of nine months overdue does not prevent him from being a bona fide holder for value in the usual course of business, and therefore whether it was not the duty of the plaintiff to make inquiry and ascertain the facts of the case, namely, that the note was obtained from a person incapacitated from doing business and partially blind from habitual drunkenness, by means of a false representation of the amount of the note, which ,was in effect a forgery.</p> <p>4. In rejecting the testimony of Robert Torbert, to prove that he was living on the farm of Williamson in January 1872, and was frequently in his house; that he saw Lawrence come there on January 25th 1872; that he had with him a five gallon keg and a two gallon jug of whiskey; that he was in the room when Williamson and Lawrence were together that day, and that he was asked to hear the reading of a note; that Williamson was very drunk at the time and said he could not see to read it and that Lawrence read it to him, thirty-seven dollars and some odd cents, and witness saw Williamson sign the note and Lawrence left while witness was there; that nothing was said between them about money matters except this note of thirty-seven dollars and some cents, and no other amount was mentioned, and that witness was well acquainted with Williamson and his habits.</p> <p>5. The referee erred in affirming the plaintiff’s first point, as follows:</p> <p>“ The evidence proves that the plaintiff purchased the note in suit within about one month after it was, in point of fact, made and issued by the defendants intestate to Lawrence, the payee therein,, and-the plaintiff’s rights, as endorsee of the note before maturity, for value, are to be judged of and determined as of the time when he, in point of fact, purchased the note from Lawrence and parted with his money therefor; and the mistake of the year in the date of the note in nowise affects his right to recover, if otherwise entitled to recover.”</p> <p>6. In affirming the plaintiff’s second point, as follows:</p> <p>“When a wrong date has, by mistake or inadvertence, been placed to a note, the actual time of the making, issuing or transfer of the same may be shown; and parol evidence is admissible for that purpose.</p> <p>7. In affirming the plaintiff’s third point, as follows:</p> <p>“ The defendant having failed to bring home to the plaintiff any knowledge of any defence or alleged defence to the note in suit .which existed or might be alleged to exist, as between the original parties to the note, before the purchase of the same by the said plaintiff, cannot now set up such defence against the plaintiff in this suit, he being an innocent purchaser of the same before maturity for value, without notice of any defence.”</p> <p>8. In negativing the defendant’s first point, as follows:</p> <p>“ That the date of the note in suit, as appears on its face, namely, January 24th 1871, was sufficient notice to Thomas Neeley, the alleged endorsee for value of the same, to put him upon inquiry as to the origin of the note, plaintiff having proved that the same was endorsed to Thomas Neeley one year after said datp.”</p> <p>9. In negativing the defendant’s second point, as follows:</p> <p>“ That the date of said note, upon its face, was such as to make it appear overdue, and it was, therefore, not transferred in the usual course of business as a note not yet due, so as to constitute the holder a bona fide holder for value without notice, with the benefit of such.”</p> <p>10; In negativing the defendant’s third point, which point and answer are as follows:</p> <p>“That if the referee believes that Williamson, the plaintiff’s intestate, was mentally incapacitated by reason of habitual drunkenness, and had fraudulently imposed upon him for his signature, a note for $737, the said note was void, and as in the case of a forged note the payee could pass no title to the endorsee of the same.”</p> <p>Ans. “The referee says, this point is correct if the mental incapacity of Williamson amounted to perfect imbecility. But if the incapacity was not permanent, and he was able, when sober, to transact business in a proper manner, then the note was not void in the hands of an innocent holder, although it was signed by Williamson, when he was drunk and unfit to transact business.”</p> <p>11. The referee erred in his answer to the defendant’s fourth point, which point and answer are as follows:</p> <p>“ That if the referee believes that the said note was.read by said Lawrence to Williamson, as a note for $37.37, instead of $787.37, and that the said Williamson was at the time unable to see so as to read, or was incapable of transacting business in consequence of the effects of excessive and long continued use of strong drink, the said note was void in the hands of the payee] and he could pass no good title to the same.”</p> <p>Ans. This point of law is correct, if the inability to see and incapacity to transact business in consequence of excessive drink, were such as to render Williamson permanently blind and imbecile. But if the inability to see and incapacity to transact business were only temporary, then the note was not void in the hands of an innocent endorsee.”</p> <p>12. The referee erred in his conclusions, that the matters proposed to be set up as a defence to the payment of the note in suit, do not constitute a legal defence against the plaintiff.</p> <p>We submit that the referee erred in deciding, under the facts of the case, as a naked point of law, that the defence of drunkenness in the maker cannot be set up against the innocent holder of a negotiable note. The general mental and physical condition of the maker, superinduced by dipsomania, together with the fraud practised upon him, constitute something more than the mere defence of voluntary drunkenness at the time, with this additional feature of the maker not being able to see and read the note for himself, which was falsely read to him. There are impositions which a man, drunk or sober, cannot guard against. The decedent requested the note to be read, and said he must sign it “mechanically.”</p> <p>The vision of the signer of the note was so impaired that he could not do otherwise. He was in the position of a layman, or illiterate person, as in Thoroughgood’s Case, 2 Rep. 96, the resolutions of which are quoted by his Honor Judge Agnew, in Schuylkill Co. v. Copley, 17 P. F. Smith 389. Under the circumstances of this case the note w'as not the deed of Williamson, and was a forgery: Schuylkill Co. v. Copley, supra; Green v. North Buffalo Township, 6 P. F. Smith 110; Worrall v. Gheen, 3 Wright 396; Michener v. Carman, 2 Id. 337. Void notes continue so in the hands of an innocent purchaser: Unger v. Boas, 1 Harris 601; Bowman v. The Cecil Bank, 3 Grant 33. It was error to allow proof of a mistake in the date of the note: Losee v. Bissell, 26 P. F. Smith 459. The character of the note should have put the holder on inquiry.</p> <p>In the cases cited by plaintiff in error, the instruments sued on were bonds and not negotiable paper, and the suits were between the original parties, or where the notes were made void by statute. This case is ruled by Phelan v. Moss, 17 P. F. Smith 59, which has been followed by Garrard v. Haddan, Id. 82; Zimmerman v. Rote, 25 Id. 188; Brown v. Reed, 29 Id. 370; Hirst v. Hart, 23 Id. 286; Moorhead v. Gilmore, 27 Id. 118; Reese v. Waubaugh, 2 W. N. C. 145; Battles & Webster v. Laudenslager, 3 Norris 446. Where justice requires it, the real date of a note may be inquired into and effect given to the instrument: ¿Story on Promissory Notes, sects. 45, 48; Passmore v. North, 13 East 517; Drake v. Rogers, 32 Maine 524.</p>

<p>The declarations of a debtor, that his wife owned land, sold on a judgment against the debtor, are not evidence to impeach the title of the vendee at the sheriff’s sale.</p>

<p>1. The deed of F., executed in 1828, conveyed certain lands in controversy to trustees, “ in trust for the use and benefit of M., his wife, and her heirs for ever; that is, the children, if any, begotten by F.; and her daughter, W., is to be made equal, to be for them and their heirs for ever, after the decease of F., her present husband.” The habendum, was “ for the use and benefit of the said wife and her daughter W., and the children begotten by F., if any, upon the body of said M., his wife.” W. was a daughter of M. by another husband. The deed was. executed shortly after the marriage of F. and M. Five children were born to them subsequently to the date of this deed. Held, that the word “ children” was not a word of limitation but of purchase; that effect was to be given to the deed as if W. was the lawful child of and heir both of F. and M.; that M. took a life-estate, with remainder in fee to the children as a class ; that there was a vested remainder in fee in \V., who was living at the time of the execution of the deed, which opened to let in the after-born children as they were respectively born.</p> <p>2. A special Act of Assembly in 1846 divested the estate of 'W. and the children and gave it to the tenant for life. Held, that as they had a vested remainder in the land it was beyond legislative power to divest it in this way, and such effect could not be given to the act.</p> <p>3. M. did not die until 1877. In pursuance of the above Act of 1846 a conveyance was made by the tenant for life in said year to defendants, and in ejectment for the land bought in 1877, it was contended that W., and the after-born children, were barred by tire Statute of Limitations. Held, that the latter took the fee under the same deed that gave M. her life-estate; that they held a distinct title in succession, and had no right of possession until that succession took place; and that their right of entry or action did not, therefore, accrue until the death of M.</p>

<p>Before Sharswood, C. J., Mercur, Gordon and Trunkey, JJ. Paxson, Woodward and Sterrett, JJ., absent.</p> <p>Error to the Court of Common Pleas, of Dauphin county: Of May Term 1879, No. 207.</p> <p>This was the appeal of the Ebervale Coal Company from the settlement of the auditor-general and state treasurer against said company for taxes for the year ending the first Monday of November 1877.</p> <p>The Act of April 24th 1874, entitled “An act for the taxation of corporations,” Pamph. L. 1874, pp. 69 and 70, requires, inter alia, in section two, coal companies to make a report to the auditor-general annually, in the month of November in each year, “stating specifically the amount of capital paid in, the date, amount and rate per centum of each and every dividend declared by their respective corporations during the year ending with the first Monday of said month; and in all cases where any such company shall fail to make and declare any dividend, upon either its common or preferred stock, during the year ending as aforesaid, the treasurer and secretary thereof, after being duly sworn or affirmed to do and perform the same with fidelity, according to the best of their knowledge and belief, shall, between the first and fifteenth days of November, of each year in which no dividend has been declared, as aforesaid, estimate and appraise the capital stock of such company, upon which no dividend has been made or declared, at its value, not less than the average price which said stock sold for during said year; and when the same shall have been so truly estimated and appraised, they shall forthwith forward to the auditor-general a certificate thereof, accompanied by a copy of their said oath or affirmation, by them signed, and attested by the magistrate or other person qualified to administer the same.”</p> <p>And in section four, said companies are required “to pay a tax into the treasury of the Commonwealth, annually, at the rate of one-half mill upon its capital stock for each one per cent, of dividend made or declared by such company, and in case of no dividend being made or declared by such company, upon either its common or preferred stock, then three mills upon a true valuation of the capital stock of the same, upon which no dividend has been made or declared made, in accordance with the provisions of the third section of this act.”</p> <p>By the Act of March 20th 1877, Pamph. L. 6, entitled “ An act to equalize the taxation of corporations and companies,” the first above cited act was so modified as to the mode of assessing the tax, as to read as follows: “ And in all cases where such company shall fail to make or declare any dividend upon either its common or preferred stock during the year ending as aforesaid, or in case the dividend or dividends made or declared upon either its common or preferred stock, during the year ending as aforesaid, shall amount to less than six per centum upon the par value of the said common or preferred stock, the treasurer and secretary thereof, after being duly sworn or affirmed to do and perform the same with fidelity, according to the best of their knowledge and belief, shall, between the first and fifteenth days of November of each year in which no dividend has been made or declared as aforesaid, or in which the dividend or dividends made or declared upon either its common or preferred stock amounted to less than six per centum upon the par value of said common or preferred stock, estimate and appraise the capital stock of such company upon which no dividend has been made or declared, or upon the par value of which the dividend or dividends made or declared amounted to less than six per centum at its actual value in cash, not less however than the average price which said stock sold for during said year; and when the same shall have been so truly estimated and appraised, they shall forthwith forward to the auditor-general a certificate thereof, accompanied by a copy of their said oath or affirmation by them signed, and attested by the magistrate, or other person qualified to admin-is-ter the same,” but was in all other respects, so far as the purposes of this case are concerned, continued in force.</p> <p>Thereafter, on the 12th day of November 1877, the proper officers of the Ebervale Coal Company, which has a capital stock of $500,000, sixty thousand of which was originally paid in cash, and the balance subsequently by stock dividends, made a report, as required by these acts, showing that during the year ending the first Monday of November 1877, said company had not made dividends amounting to six per cent., but had made one of five per cent, on March 1st 1877, and appraising the capital stock at $150,000.</p> <p>On this report the auditor-general and state treasurer, on June 17th 1878, settled an account against said company, charging it with a tax on the par value of its capital stock, in respect of the five per cent, dividend for the whole year; and also a tax on the appraised value of its capital stock, pro-rated on the part of the year from March 20th 1877 to the first Monday in November 1877.</p> <p>This mode of assessing the tax was thought by the company to be erroneous and illegal, and hence they appealed, as provided by law, to the Court of Common Pleas of Dauphin county.</p> <p>The case was heard by the court, Pearson, P. J., without a jury, the facts being undisputed.</p> <p>The court filed an opinion as follows:</p> <p>“The company was duly incorporated with a capital of $500,000, only $60,000 of which was paid in cash. On the 12th of November 1877, a report was made to the state department that on the 1st day of March 1877, the company had declared a dividend of five per cent, on its capital stock of $500,000. This, according to the fifth section of the act of the 24th of March 1874, was subject to a tax of one half mill of its capital stock for each one per cent, of dividend made or' declared by such company. Although this dividend was made and declared on the 1st day of March, yet as the tax is to be assessed on the dividend made or declared annually, it is possible that if nothing else existed in the case that would have been the annual tax, yet that is by no means certain, as it is quite possible that as this dividend was made and declared as early as the 1st day of March, the department could have required a statement of the subsequent profits of the business for that year, and assessed a tax thereon. It is not to be presumed that the dividend was declared before it was earned. But there is another feature in the case. On the 20th day of March 1877 a new tax law was enacted, to go into effect immediately, providing that where less than six per eentum of dividend on the par value of the stock is declared, the stock shall be appraised by the treasurer and secretary of the company, according to the average price at which it sold during the year, and a tax of three mills on each dollar of valuation so made is required to be paid by the corporation. The same statute reserves a*nd secures to the state any taxes accrued and accruing under any laws or parts of laws prior to the date of the approval of that act. Pursuant to this last enactment the officers of the company, on the 2d day of May 1878, appraised the stock at $120,000, on which the officers of the government assessed a tax of $283,57, for two hundred and thirty days of the year 1877, being the unexpired period from the former assessment to the end of the fiscal year, the first Monday in November.</p> <p>“To us it is very clear that down to the time of declaring the dividend, on the 1st day of March 1877, this company was operating and doing business under the act of 1874, and properly reported its tax down to that time under that statute. From thenceforward it acted under the later statute, which relieved it of a very large portion of its taxes. It is urged that this construction subjects the company to double taxation. There is certainly nothing in the evidence which shows it. We must either presume that the dividend was declared before it was earned, or that by the end of the year the company would have earned and been able i'o divide a much larger sum. It is, however, more probable that on the cessation of the law it made its dividend, and started to operate under the new law. The company under the statute of 1877 was not charged with what it had done under the act of 1874, but only until the expiration of the year — for two hundred and thirty days. Even if this were double taxation we are not prepared to say that it is illegal.. The Supreme Court has said that the legislature has the same right to impose a double as a single tax, though we are unwilling to infer, in the absence of very clear language, that it was so intended. We are of the opinion that the tax was properly charged by the accounting department as to both items.</p> <p>“ The penalty for failing to report was not properly imposed. It is in proof that a report was made by the officers of this company on the 5th day of December 1877, and when the government officers were dissatisfied therewith, and called for a further additional report, it was promptly made, therefore, $153.35, as penalties, must be struck out of the settlement. It was never intended that they should be imposed in such cases.</p> <p>“ The question of interest prior to the settlement is not of so easy solution. As a general rule, the failure to pay money justly due subjects the delinquent to the payment of interest. Yet to have that effect, there should be some dereliction of duty by neglecting where the amount was fixed and known. In the present case it was extremely difficult for the company to ascertain what was due. The taxes arose under new statutes. There was an honest dispute as to how -much should be paid to the state treasury, and under such circumstances a settlement of the amount should be ascertained by the public officers, and the defendant have reasonable notice of the claim. The settlement in this case was consummated on the 17th of June 1878, and bears interest at twelve per centum after sixty days from that time. We, therefore, give judgment in favor of the Commonwealth for sixteen hundred and ten dollars twenty-four cents ($1610.24,) on this 17th day of January 1879.”</p> <p>To this decision, the defendant filed the following exceptions:</p> <p>1. The court erred in the finding of the facts, in that the officers of tbe company defendant made two reports for taxation to the auditor-general, for the tax year 1877, the evidence showing that only one report was made, and that at the time and in the form required by the auditor-general, under the Act of March 20th 1877, and the company did not make nor pretend to make any report, under the Act of March 24th 1874.</p> <p>2. In assuming, that because the only dividend made by the company, during the tax year 1877, was made in March, the company had made other taxable profits during said year, there being no evidence to warrant such assumption, and the report made by the company, which was accepted as correct by the auditor-general, showed that such was not the fact.</p> <p>3. In concluding, that in the account as settled, the company defendant “ was not charged with what it had done, under the Act of 1874, but only until the expiration of the year,” because the Act of 187-7 requires the capital stock to be assessed at not less than the average price at which it sold for, during the year, and, therefore, the value given to it by the dividend made in March must have entered into the appraisement on which it was taxed.</p> <p>5. In deciding, that “ the tax was properly charged by the accounting department as to both items,” viz.: the tax, §1250, in respect of the dividend of five per cent., and the tax of §283.57, in respect of the appraisement.</p> <p>6. In not deciding, that said settlement is erroneous and illegal, because therein the said company is taxed on the basis of the amount of dividend made and declared during the year ending on the first Monday of November 1877, whereas the said dividend or dividends, made during said year, did not amount to six per cent.; as the Act of March 20th 1877, in force when said settlement was made, provides, that when the dividend or dividends 'made or declared during the year do not amount to six per cent., the tax shall be settled and assessed on the basis of tan appraisement of the capital stock of the company, and not on the basis of the dividends.</p> <p>7. The court erred in not deciding that the tax charged in respect of the dividend should be pro-rated.</p> <p>8. In giving judgment for the Commonwealth for the sum of §1610.24, and in giving judgment for any other or greater sum than the amount of tax which would have resulted from a levy of a tax on the appraised value of the stock, under the Act of March 20th 1877, for the whole tax year of 1877.”</p> <p>The court overruled the exceptions, and entered judgment for the Commonwealth, when defendant took this appeal and assigned this action for error.</p> <p>We contend that this tax is an annual tax, equivalent to the three-mill tax on personal property; that it can be assessed but once in the year, and this must be done as provided by the law in existence at the time the assessment is to be made; and that even if this be not correct, that the tax in respect of the dividend must be pro-rated upon the part of the year during which the Act of 1874 was in force.</p> <p>The corporation made one dividend during the year ending the first Monday of November 1877, and only one; namely, five per cent, on March 1st 1877. This, if the Act of March 20th 1877 had not been passed, would have fixed the tax on capital stock, payable by this company for 1877, at two and one-half mills upon its par value, and no report could be required nor tax assessed, until after the first Monday of November 1877. The tax did not become due when the dividend was made, nor could it be told until the end of the tax year how much would be due,-because other dividends might be made. But the Act of March 20th 1877 was passed during the year. It does not introduce a new subject of the tax, nor does it impose a new tax; it merely changes the mode of assessing the tax formerly imposed. And this tax is an annual tax, and the Act of 1877 says, the corporation on which it is imposed “shall be subject to and pay into the treasury of the Commonwealth, annually, a tax to be computed as followsand it merely changes the mode of computation, as above recited. Hence, when the date arrived when a report was due from the plaintiff in error, for the year 1877, it was made; and, as the dividends made during the year did not amount, in the aggregate, to six per cent., the stock was appraised at its actual value in cash, and not less than the average price for which it sold during the year. And we contend that this appraisement fixed the tax due for said year at three mills on such appraised value — the rate fixed by the Act of 1877, when the dividends amounted to less than six per cent, during the whole year.</p> <p>There is no double taxation in this case. To tax the company for the period of time between the first Monday of November 1876 and the 20th day of March 1877, we must resort to the law of 1874, or permit it to go untaxed. And our right to collect such taxes, under that law, is made plain by the words of reservation in the eighth section of the Act of 1877. Second, the Act of 1874, ending on March 20th 1877, except so far as its future operation was saved by the section just referred to, of the Act of 1877, we cannot tax the company for the balance of the year, ending first Monday of November 1877, except under the provisions of the Act of 20th March 1877. And that it was the intention of the Act of 1877 to make the taxes it imposed commence upon the day of its approval, is shown by the opening words of its first section. In brief, we say that it was the legislative will to tax the Ebervale Coal Company for the year ending first Monday of November 1877, and in order to do so, we must resort to both of the laws of 1874 and 1877, and employ their provisions, as we have done in this case.</p>

<p>Error to the Court of Common Pleas of Juniata county: Of May Term 1879, No. 98.</p> <p>Attachment-execution issued by David Bohner against A. S. Cummings and Louisa Cummings, as defendants, and S. Troutman and others, as garnishees.</p> <p>Plaintiff obtained a judgment against A. S. Cummings for $1360, and issued this attachment-execution against several judgments in defendant’s favor, which were entered upon the docket as follows: A. S. Cummings, agent, v. H. & S. Troutman, No. 154, Sept. Term, 1875, Debt, $953; Same v. Same, No. 155, Sept. Term, 3875, Debt, 375. Same v. Same, No. 127, Dec. Term 1875, Debt $825. At the trial, before junkin, P. J., the defendants offered to prove by Mrs. Cummings that her husband had loaned money .to the Troutmans, as her agent, that the money belonged to her, and that these judgments were given therefor. Also, to prove that she had a large sum of money, which was her eparate estate, and that it had been invested by her husband, as her agent. The court overruled the objections to both of these offers and admitted the evidence. The court left it to the jury to determine what was the amonnt of Mrs. Cummings’s separate estate, and whether it had been invested by her husband as her agent. The verdict was for defendants, and after judgment plaintiff took this writ and alleged, inter alia, that the court erred in admitting the above evidence and in submitting the foregoing questions to the jury.</p>

<p>Error to the Oyer and Terminer of Northumberland county: Of May Term 1879, No. 42.</p> <p>Indictment of Peter McManus for the murder of Frederick Hesser. McManus was jointly indicted with John O’Neil, but they were granted separate trials.</p> <p>Frederick Hesser, the deceased, lived in Coal township, Northumberland county, about two miles from the borough of Shamokin. He was a stout, fleshy and healthy man, fifty-seven years old. In the month of December 1874 he was employed in the capacity of night watchman, at what is called the Hickory Swamp coal breaker, about one mile from his residence. He was in the habit of going to his work about six o’clock in the evening, and returning about seven o’clock in the morning. On the 18th of December 1874 he was alive and in good health. About six o’clock in the evening of that day he left his home, and was last seen on his way to his place of employment. The next morning, at about six o’clock, whilst it was yet dark, his dead body was found, lying upon the floor near the stove, in the engine-house of the breaker, partly on his face and shoulder. He wore a black soldier overcoat, the cape of which partly covered his head. A club three and a half to four feet long was found near him and partly under the stove; a hammer that had been used at the breaker was found by his right hip. Both these instruments had blood and hair on them. There was a dinge upon the clock which hung against the wall or post, the face of which was injured, and the glass broken and strewn over the floor. The lower hinge of the door that led into the room was broken, and there were marks upon it. An examination of the body showed eight wounds in the' scalp, apparently produced by some blunt instrument, and a fracture of the right forearm.</p> <p>At the time.of the alleged murder the prisoner lived with Henry Long, about a mile from Hickory Swamp Colliery. On the evening previous to the murder the prisoner was at home at Long’s house. One John O’Neil came there while McManus, the prisoner, was there on that Thursday night. One Robert Haggerty and a stranger were with O’Neil when he came. They remained there during the night. When they arrived the prisoner was in bed and they called him up, and they went down stairs. They were together down stairs in the kitchen. Robert Haggerty went home before morning. In the morning the prisoner, O’Neil and the stranger were seen coming down stairs. O’Neil and the stranger went away, McManus, the prisoner, accompanying them for some distance. He returned, and some time after took his gun and dog and told the family he was going hunting, and if any person asked for him, to say that they did not know how soon he would return. He returned late in the day, went up to his room and went to bed about eight or nine o’clock. He was there in the morning. The theory of the Commonwealth was, that on Thursday night, the night before Hesser was killed, the alleged murder was planned by the prisoner and the persons with him at Long’s house.</p> <p>At the trial before Rockefeller, P. J., Morgan P. Davis, a witness for the Commonwealth, in substance, testified to two different conversations that he heard between the prisoner at the bar and John O’Neil, and also a conversation between himself and the prisoner. The conversation between the prisoner and O’Neil took place at the mines at Hickory Ridge Colliery, in the month of May or June 1876. The witness said that at the time he heard the first conversation between the prisoner and O’Neil, “that McManus came out from his shutes and headings. This was in the gangway, and asked me if I had seen Jack O’Neil, and I said I had, he was up in his breast. So McManus jumped right on to the ladder, as we call it, that we had to go up. McManus went up the breast forty-five or fifty yards and seen O’Neil. I went up to my own place. I had two shutes, and I went up the inside shute, the next but one to O’Neil’s. When I went up I creeped over through the pillars until I got in the next pillar of the inside shute where O’Neil was working. There I heard a conversation in regard to this Hesser case. Jack O’Neil said to Peter McManus, I was awful afraid last night, 'hearing that the coal and iron police was around after the Mollies. I was awful afraid I would be taken for the Hesser murder case. McManus said, no danger, never fear, Jack. O’Neil said, some of the rest of them may squeal. Then McManus says, no danger Jack, repeating it. If you are taken, die grit, like a goat, and I will do the same. Then McManus talked to him again, and told him, never fear, again. Then Jack said, look how little Kerrigan squealed [referring to the evidence of Kerrigan in Campbell 11. Commonwealth, 3 Nórris 187 Rep.]. Then McManus said to Jack O’ Neil, Michael J. Doyle and Edward Kelley were damned fools for shooting Jo'hn P. Jones in open daylight. If they had taken the dead hour of the night at it, like we did; and it was the deathly blow I give old Hesser on the side of the head what fetched him. Then they moved over a little distance to the outside shute. Then O’Neil says, I am very sorry for it. Then Peter McManus says, I ain’t a God damned bit; it would be death if we didn’t do it, and before I would violate my oath I would die and do it again; and it wouldn’t be no worse anyway. That was all I heard at that time.” The witness stated that he heard another conversation between O’Neil and Peter McManus and another person, in reference to this Hesser murder. “ That was a few days afterwards, in Hickory Ridge Colliery, in the mines, just above the battery, what we call the stoppings for ventilation, to turn it up. They were about eight yards from the gangway, O’Neil, McManus and Pickey Donnelly were together. O’Neií said, I wonder if them fellows that passed us heard our conversation whén we were planning the Hesser murder case ? we were rather full, and talked rather loud. McManus said to Jack O’Neil, keep quiet, mouth shut; it is all dark only to our own party. I wasn’t more than about twelve feet from them.” The witness then related a conversation between himself and the prisoner. “Him and me was going to work in the morning; we were going from Henry Long’s to Hickory Ridge Colliery; only us two were together. He asked me what was the news in the “ Shenandoah Herald” last night. I said that Tom Foster is hunting up those things fast, those Mollie Maguire cases; and the murderers of Hesser ain’t very far from here, I said to him. Then he got excited in a minute, and asked me what did I know about it, and I told him he need not get mad, I was only tilling him what was in the paper. He told me to keep my God damn mouth shut. I kept my mouth shut; I said no more.”</p> <p>The Commonwealth offered to prove by a witness upon the stand, Dennis F. Canning, that at the time of the murder of Frederick Hesser, and for some time prior thereto, there existed in the coal regions of Northumberland and Schuylkill counties an organization known generally as the Mollie Maguires, but the real name of which was the “ Ancient Order of Hibernians,” that he was initiated as a member of that organization, and was at the time Hesser was murdered, county delegate of such organization for Northumberland county, and that McManus, the prisoner, whose declarations and admissions, witness has testified to, and whose conversations and acknowledgments had with and made to one John O’Neil, the person jointly indicted with said McManus, as testified to by Morgan P. Davis, was a member and body-master of such organization at the time of and prior to the murder, and was such at the time when such admissions and conversations were made and had; and that said John O’Neil, at the time and prior to the murder, and at the time of said conversations and admissions, was a member of said organization; and that both were known to be such by the witness; and that McManus the prisoner, knew witness to be a member and officer of said organization at the times spoken of; that it was the practice in the said organization, and known to be such to the above-named persons, for the members to aid and assist each other in the commission of crimes, and in defeating detection and punishment. That said organization was a secret one, whose members were bound by oaths or obligations to secrecy; the members of which could make themselves known to each other by signs and pass-words; and that the declarations and admissions of the prisoner, above referred to, were made to the witness, and the conversations and declarations had with and made to John O’Neil were made and had as a fellow-member of said organization. This to be followed by proof that McManus, the prisoner, said John O’Neil and another member of said organization, who called himself Pat O’Neil, met the night before said murder in the neighborhood where the crime was committed, and in a conversation together spoke of beating some one’s brains out; and that said Pat O’Neil had upon his person papers showing him to be a member of said organization, which he destroyed, under instructions of said prisoner, for fear he would be arrested with them on his person, and that he left the county immediately after the commission of said crime, by direction of said prisoner.</p> <p>This for the purpose: 1st. To show the motive for the commission of the murder; and 2d. To explain the relations existing between the witness, the prisoner and sa-id John O’Neil, and why the admissions, declarations and conversations above referred to and already in evidence were made and had.</p> <p>The defendant objected:</p> <p>1. Because the prisoner cannot be called upon to answer to that of which he had no notice. The indictment on which he was arraigned, and to which he has pleaded not guilty, charges that Peter McManus, yoeman,.wilfully and of his malice aforethought did kill and murder one Frederick Hesser. It does not charge that the prisoner was a member of any secret or open society or organization, or that he conspired, contrived or colluded, with the members of any secret or open society or organization to commit the crime charged in the indictment; nor that he was counselled, directed or commanded by any society or organization having authority over him, to commit the crime of which he stands charged. The prisoner is without notice through the indictment or otherwise that he would be called to defend himself against such charges and allegations as are contained in the Commonwealth’s offer. It is a fundamental rule of criminal law that a prisoner can only be called on to answer and defend that with which he is directly charged in the indictment preferred against him.</p> <p>2. The prisoner is indicted for murder and not for conspiracy. The offer is to show that he was connected with a secret organization, engaged in and counselling criminal practices. It is not competent to show that. he was connected with such secret organization. Nor can he be called upon to defend an implied charge of conspiracy; such charge must be directly made and set out in the indictment, before a prisoner can be required to answer.</p> <p>3. The offer of the Commonwealth is to show that there existed in Northumberland county, and in other counties of this Commonwealth, a secret society, criminal in its purposes and practices, and counselling, permitting or commanding its members to criminal acts, and protecting and defending them against arrest and punishment, and that the prisoner was a member of such society or organization. The only effect of the evidence proposed by the offer, would be to show the character of the prisoner, by inferences drawn from his membership with such criminal society. The character of the prisoner cannot be attacked by the Commonwealth; the prisoner alone may deal with that question, in the first instance by availing himself of his good character as a circumstance of defence; and not until this is done by the prisoner can the Commonwealth enter upon the question of character by direct inquiry, or by indirect means tending to that purpose.</p> <p>4. The offer is to show the existence of a criminal society in Northumberland county, and the criminal acts of parties not on their trial here, nor indicted with the prisoner, and for whose acts the prisoner is not responsible.</p> <p>5. It does not appear, from the evidence, that the alleged criminal organization or society, of which the prisoner is charged with being a member, had any agency in the indictment to which the prisoner is answering.</p> <p>6. Evidence must be confined to the issue in the case, and in this case the proofs do not show the defendant acted otherwise than on his own responsibility, or that he acted by direction of, or in collusion with, any society, or person or. persons.</p> <p>7. The opportunity and means for committing the crime, and the motive for it, must be shown by legal evidence.</p> <p>8. The evidence offered is not competent.</p> <p>9. The evidence offered is irrelevant to the issue trying between the Commonwealth and the prisoner.</p> <p>Objected to as to the purpose of the offer.</p> <p>1. The opportunity, means and motive ought to be proved from the facts connected with the perpetration of a crime, by the weapons employed in committing it, and the time where committed, and nothing contained in the offer tends to this purpose.</p> <p>2. Relations existing between the' witness, the prisoner and said John O’Neil, and why the prisoner made certain declarations and admissions, charged to have been made by him, are not proper subjects of inquiry for the purpose of this trial, nor can such relations be shown by proof of the prisoner’s responsibility and rela tions to, or membership in, a secret society, and therefore such evidence is not revelant.</p> <p>By the court: “The question raised by the offer to prove the existence of the society called the ‘Ancient Order of Hibernians,’ known as ‘Mollie Maguires,’ and its objects and operations, is not a new one, and has been before the Supreme Court in several cases. It is true it was offered to prove that the crimes were committed-through the instrumentality of the ‘Mollie Maguire’ organization, but in the case of Hester et al. v. Commonwealth, 4 Norris 139, counsel made the objection that the testimony showed that the society in question had no agency in the alleged conspiracy, but that the prisoners acted on their own individual responsibility; that evidence, therefore, as to the nature of the society and the relations prisoners sustained to it, was incompetent and irrelevant. The court below admitted the evidence, confining it to facts that existed in October 1868, and declined to admit proof of specific acts of other members of the society, either before or since that time. This was affirmed by the Supreme Court. Judge Woodward, in delivering the opinion of the court, says: ‘Was this testimony relevant? It was not designed to be used to establish the commission of any independent crime, nor was its object to affect general character or to repel inferences from adversary facts. Its purpose was to explain the relations existing between the conspirators. The' reason, motive and opportunity of their combined action and the nature of the tie that bound them together.’ In that case, ten men, including the three prisoners, met in a saloon on the evening of the 16th of October 1868, and openly arranged the details of their plan to attack and-rob Mr. Rea on the following day. Hester was the body-master of the Locust Gap division, and the nine others were members of the order. A motive, that is to rob and obtain money, had been proved, and there was no real necessity for proving any other motive; but the evidence was proper, in my opinion, for the purpose of explaining the relations that existed between the conspirators, the reason and opportunity of their combined action, and the tie that bound them together. In the present case, the Commonwealth relies on the confessions, o“r rather what may be more properly termed, the self-criminating statements of the prisoner, in connection with circumstances and facts tending to show that they were true, made to the witness and also to one or more of the alleged conspirators, at a time when they thought no one was present. It is proposed to prove that the prisoner was the body-master of Shamokin division at that time, and John O’Neil was a member of the society. That the witness was county delegate of the same order at the time, and that the declarations and admissions of the prisoner referred to, were made to the witness, and the declarations had with and made to- John O’Neil, were made and had as a fellow-member of said organization. This being in the offer, I do not see how the evidence can be rejected. The evidence already in, clearly tends to show that both the prisoner and O’Neil were some of the parties connected with the murder of Hesser. On the occasion when Pickey Donnelly was present, it would seem plain that they talked of a previous planning of the Hesser murder. O’Neil expressed his fear that some persons who had passed, the night they had planned the Hesser murder, had heard them, as they had talked rather loud, when McManus told him to keep quiet, that it was all dark only to their own party. This evidence, if believed, clearly tends to show that there had been a previous conspiracy, a planning of the Hesser murder, and that these parties were the conspirators. If the kind of testimony received in the case of Hester, was proper to explain the relations, reason and motive, and opportunity of combined action, and the nature of the tie that bound them together; that is, ten men who had conspired to murder Rea, why is it not proper to show the relations, &c., of two or more men who had done the same thing with regard to the murder of Hesser ? The statement of the conversation between the prisoner and O’Neil, as detailed by Morgan P. Davis, tends to show that they were talking together as members of the society. McManus was the body-master and O’Neil a member. O’Neil expressed his fear of being taken for the Hesser murder, as the police were up after the Mollies, and the reply of McManus tends to show that they were acting under some secret oath or obligation. It is not shown that the object was to rob Hesser, and without some. evidence of the kind offered, the act is perfectly inexplicable. With it, perhaps, the declaration and evidence already in, may be understood. The Commonwealth cannot expect to convict the prisoner, on his own confessions and declarations alone, and must show some facts or circumstances independent of them, tending to show that they were true. I have come to the conclusion to admit the evidence, confining the testimony to facts that existed in the month of December 1874, at the alleged time of the Hesser murder, but it is not permitted to prove specific acts of others, members of the society, either before or since that time. *A11 specific acts of others than those charged with complicity in the murder of Hesser, are excluded.”</p> <p>The defendant, inter alia, presented the following points, to which are appended the answers of the court:</p> <p>3. That the evidence in this case discloses and proves that Peter McManus, the defendant, was not present when. Frederick Hesser was killed, nor did he inflict the injuries Avhich caused the death of Frederick Hesser. That unless the Commonwealth have established by sufficient competent evidence, that Peter McManus counselled, advised, conspired, aided and abetted or procurred the killing of Frederick Hesser, he, Peter McManus, must be ' acquitted.</p> <p>Ans. “ I cannot answer this point as requested, but so much of the point as requests the court to charge that unless the Commonwealth has established, by sufficient competent evidence, that Peter McManus counselled, advised, conspired, aided and abetted or procured the killing of Frederick Hesser,. he, Peter McManus, must be acquitted, is affirmed.”</p> <p>4. That there is no evidence in this case tending to show that Peter McManus was connected with pr had anything to do with the killing of Frederick Hesser, except the evidence of Morgan P. Davis, and that all the other evidence in the case, is consistent with the innocence of the defendant.</p> <p>Ans. “ This point I answer as requested, but say, to you, that in my opinion, there is evidence in the case, tending to show that Peter McManus was connected with or had something to do with the killing of Frederick Hesser, taken in connection, with the evidence of Morgan P. Davis; but without the evidence of said Davis, all the other evidence is consistent with the innocence of the prisoner, and the point is answered in the affirmative.” ,!‘</p> <p>In the general charge the court, inter alia, said :</p> <p>“ No witnesses have testified that they saw the act done, and the individual who committed it, but the Commonwealth relies partly on facts and circumstances sworn to by several witnesses, and on the declarations, admissions or statements of the prisoner himself, made on several occasions. * * *</p> <p>. “ The defendant’s counsel contend that there is no evidence, or not sufficient evidence, in the case to be submitted to the jury, tending to show the defendant’s participation in the alleged crime, and that the court ought to instruct you, as matter of law, that there can be no conviction; but I am of opinion that there is evidence in the case which I am bound to submit to you.”</p> <p>The jury rendered a verdict of murder in the first degree, and the prisoner was sentenced to be hung. A like verdict was recorded and sentence imposed in the case of O’Neil. Both took writs of error, and the cases were argued together in the Supreme Court. In the case of McManus,'-'as well as O’Neil, it was alleged that the court erred, 1. In admitting the evidence of Canning; 2 and 8, in the answers to the points of defendants; 4 and 5, in the portions of the charge noted, and 6, in failing to consider on the argument of the motion for a new trial, the after and newly-discovered evidence with reference to the character of Morgan P. Davis for truth and veracity, and also the testimony of trustworthy witnesses, showing that Morgan P. Davis had .testified falsely to the material facts, on the trial of this case. This evidence was brought to thé knowledge of counsel after trial and verdict; depositions of witnesses were taken in Bradford county, which depositions were submitted to the court below, and the attention of the Supreme Court at the argument in said court was asked to this evidence, as it was subjoined in the appendix of the defendant’s paper-book.-</p> <p>It is not proposed in the offer contained in the first assignment of error to show that the society of the “ Ancient Order of Hibernians” ordered, directed, approved of, or counselled this murder; nor that the society had any knowledge that it was to be committed, or by whom it was committed. How can the existence of this society furnish a motive for this crime of murder ? The offer, without suggesting that Peter McManus was induced by the society to commit the crime, or in any way to connect the society with it, simply proposes to make the prisoner responsible for lawless and criminal acts of men said to belong to a secret society of which he was a member, men with whom he is not brought in connection and did not know. The offer does not hint that O’Neil, the “strange man,” or McManus, or either of the other persons who were in company with them, committed this or any other crime, nor is there an attempt made to show that the society of Mollie Maguires planned the murder of Hesser. Upon what principle of law or rule of evidence then, was this testimony admitted-? Members of the Ancient and Honorable order of Free and Accepted Masons, Odd Fellows, of every secret order, and of the Christian chúreh, have, from time to time, committed crimes, but will it be pretended that, therefore it would be admissible to put in evidence the fact that a man, on trial for murder, belonged to either of these institutions, for the purpose of charging him with the responsibility of the criminal acts of others; or that there was a tendency to commit crime in these societies.</p> <p>The presumption of good character, the law maintains with equal positiveness. It cannot be taken from the prisoner, by showing him to have had evil associations, or companionship with criminals, or by showing him to have been guilty of other criminal acts. The Commonwealth is not permitted to attack the character of the accused, he not having put it in issue.</p> <p>This case in essential features differs from all the. reported cases in which the courts have permitted the Commonwealth to show that the defendants were members of the secret order of “ Mollie Maguires” or “Ancient Order of Hibernians.”</p> <p>The testimony received explained fully the motives and conduct of the prisoner and John O’Neil. • It explained why the prisoner talked so freely with Canning on the subject of the murder, and what McManus meant when he told O’Neil, in their conversation in the dark recesses of the mine, in answer to O’Neil expressing himself as being sorry, “ that it would have been death to them if they had not done it, and before he would violate his oath he would do it again.” And also what he meant when he said to O’Neil on another occasion in the same mine, in the presence of Donnelly, another Mollie, in answer to O’Neil when he was expressing a fear that some one had overheard them when they were planning the Hesser murder. The admission of this evidence is justified by recent decisions: Carroll et al. v. Commonwealth, 3 Norris 107; Campbell v. Commonwealth, Id. 187; Hester et al. v. Commonwealth, 4 Id. 139. The facts contained in this offer and admitted in evidence were relevant, direct and essential. Without them the conduct of the prisoner and his associates would be explicable on no recognised or rational theory regarding the motives and modes of human action. With them a jury was enabled to understand how the brutal and cold-blooded conversation in the house of Henry Long could have been had without scarcely any concealment or reserve; how a horrible murder could have been committed the following night, and how the killing could be talked over so fully among themselves in the recesses of the mine.</p> <p>The refusal to grant a new trial is not reviewable here.</p>

<p>Appeal from the Court of Common Pleas of Northumberland county: Of May Term 1879, No. 47.</p> <p>This was a bill in equity filed by Joseph Bird against Charles A. Godcharles and others, trading as C. A. Godcharles & Co., to restrain defendants from removing certain shops and machinery. The material facts are stated in the opinion of this court. The court, Rockefeller, P. J., made a decree confirming the report of the masters, dissolving a special injunction •which'had been granted, and dismissing the plaintiff’s bill with costs. Prom this decree Bird took this appeal.</p> <p>The appellees did not want Bird in the firm, and in consideration that he would withdraw therefrom, they agreed to change the works into a nail-factory, and thus enhance the value of plaintiff’s land adjoining. It was the understanding when the shops were bought, that they were to remain in Northumberland. The masters’ findings were against the evidence. The inducement to Bird to sell was, that a nail-factory should be established, and that the shops would not be removed. A permanent injunction should be granted to prevent such removal.</p> <p>The masters were bound to find, from the testimony, that there was no fraud, and if fraud did not exist, there was no remedy. The question of removal was one of veracity between Bird and Godcharles. The appellees were industrious workmen who did not want any one but a practical nail-maker in the firm. They had limited means and tried to raise money in Northumberland and failed. It was their interest to remain there if they could have procured the necessary funds which were offered them by capitalists in Milton. If they had agreed in writing and under seal, no court of equity would have granted a permanent injunction when, thereby, the defendants would sustain a heavy loss, and the plaintiff would receive very little benefit.</p>

<p>Error to the Court of Common Pleas of Columbia county: Of May Term 1879, No. 35.</p> <p>Ejectment by John H. Goodman against John Sanger to recover four hundred acres of land in Conyngham township, Columbia county.</p> <p>On the 10th of January 1794, a warrant was granted to Johnston Besely for four hundred acres of land in Northumberland county; and in pursuance thereof a survey of four hundred acres and the allowance, on the waters of Catawissa creek, in said county of Northumberland, was made on the 7th of March 1794, and on the 16th of October, in the same year, a patent for .this tract of land was granted to Robert Morris. By an Act of Assembly approved the 22d day of March 1813 (Pamph. L. 1812-3, p. 146), the county of Columbia was, on the first Monday of September 1813, erected out of part of Northumberland county, and the land in question has since been situate in Columbia county. By the fifth section of the said act it was enacted “ that all taxes or arrears of taxes laid, or which have become due within the said couuty of Columbia before the passing of this act, and all sums of money due to this Commonwealth for militia fines in the said county of Columbia, shall be collected and recovered as if this act had not been passed.”</p> <p>This Johnston Besely.tract was duly assessed with taxes, as unseated land, from 1796 to 1813, both years inclusive, in the county of Northumberland, and the county taxes for the years 1806 to 1813, both inclusive, and the road taxes for the years 1805 to 1810, both inclusive, not having been paid, the tract of land was sold by the treasurer of Northumberland county for these taxes, in 1816, after the erection of Columbia county, in due form of law, to the commissioners of Northumberland county, and a deed for the same to the said commissioners, dated the 18th day of July 1816, was duly executed-and acknowledged. The commissioners of Northumberland county, at a commissioners’ sale, held at the court house in Sunbury, on the 11th day of June 1874, sold this tract of land to John H. Goodman, the plaintiff, for the sum of $10,000, and afterwards by their deed, dated the 1st day of July 1874, and duly executed and acknowledged, conveyed the same to him. This deed, and the aforesaid deed of the treasurer of Northumberland county to the commissioners of that county, were recorded in Columbia county on the 21st day of July 1874.</p> <p>The defendant, John Sanger, was a tenant of Daniel B. Eisher, Asa Packer, Elisha P. Wilbur and Gideon Bast, who made the defence. The land had been unseated until December 1871, when Eisher and his co-tenants erected a small house upon the premises, and'put a tenant in possession. They claimed title under the warrant to Johnston Besely and the patent to Robert Morris, and gave in evidence a deed of Robert Morris and wife, dated the 8th day of July 1795, for this tract and others to John Nicholson, and the proceedings of the Nicholson commissioners, and a sale by them of the Johnston Besely tract, on the 23d of June 1807, to Philip Meyer, who gave his bond, with sureties, for the purchase-money. They also showed payment of this bond, by Valentine Brobst for the estate of Philip Meyer, to the treasurer of the Commonwealth, on the 2d of January 1816, and a deed of the secretary of the Commonwealth, dated the 12th of January 1836, to Eranklin'P. Meyer, Eliza Leib, Catharine Meyer, Mary Ortlip, Rebecca Meyer and Louisa Epting, children and heirs of Philip Meyer, deceased, for the Johnston Besely tract and three others. They then showed that the title of all the several grantees of the children and heirs of Philip Meyer, had, by sundry conveyances, become vested in them, the said Eisher, Packer, Wilbur and Bast.</p> <p>At the trial, before Elwell, P. J., the defendant proposed to prove that the purchase-money which formed the consideration of the different conveyances from Meyer’s heirs was actually paid by the purchasers. This offer was for the purpose of showing that the defendant’s lessors, and those under whom they claimed, were purchasers for value, without notice; and the plaintiff’s title not having been recorded, and the conveyances to defendant’s lessors being of record, as already given in evidence, the title of the defendant’s lessors was protected by the recording acts.</p> <p>The plaintiff objected: 1. Because the purchasers from Meyer’s heirs were bound to know that the land was unseated; had been assessed for taxes, and sold to the commissioners of Northumberland county; and had such notice by the official books and papers in the commissioners’ office, and of the treasurer’s office of Northumberland county; and also by the redemption by Bright for the county in 1840, on the treasurer’s sale-book of Columbia county. 2. Because no law requires a treasurer’s deed to commissioners to be recorded. The court overruled the objections, and admitted the evidence.</p> <p>The following were among the points submitted by plaintiff:</p> <p>3. That the official books from the offices of the commissioners and treasurer of the county of Northumberland, given in evidence, showing the assessments and the sale of the land to the commissioners of Northumberland county, were legal notice to the heirs of Philip Meyer, and to all persons claiming under them, of such assessments and sale for taxes;' and also that the entry on the treasurer’s sale-book, of Columbia county, of the redemption from the sale of 1838, made by George Bright, for the county of Northumberland, was notice to the purchasers from the heirs of Philip Meyer, of the title of the county of Northumberland.</p> <p>4. That the fact that the deed of the treasurer of Northumberland county, to the commissioners of the same county, was not recorded in Columbia county before 1874, does not, in any manner, affect the title of the commissioners, or of the plaintiff derived from them, so as to invalidate it or postpone it to that claimed by any persons claiming through Philip Meyer, or any other person.</p> <p>5. That under the evidence in this cause the verdict of the jury should be in favor of the plaintiff, for the land claimed in the writ of ejectment.</p> <p>The court did not specifically answer the foregoing points, but in the general charge, inter alia, said:</p> <p>“ The fact that the county of Columbia was erected before this sale, and that the land, from 1813 down, was subject to this county’s jurisdiction, are facts which, it seems to me, enter into consideration in disposing of the question now before the court. It is contended on the part of the defendant, that this conveyance from the treasurer to the commissioners of Northumberland county, is within what is known as the Recording Act, which has been read in your hearing, and "which, for the purpose of giving notice, and for the purpose of preserving the muniments of title, requires and allows the recording of deeds and other instruments conveying title to land. On the other hand, the counsel for the plaintiff contend that this deed is not within the meaning of the recording law. Upon the best consideration which I am able to give to the question, I am of the opinion that it is within the recording law, and that it was the duty of the commissioners of Northumberland county to have recorded the conveyance in the county of Columbia, for the purpose of notice. * * *</p> <p>“ This plaintiff does not claim to recover any undivided part of the land; he claims to recover the whole; and, in order to raise the whole question, I charge the jury: That the defendant claims under persons who hold by deed for a valuable consideration, and without notice of the title of the commissioners of Northumberland county; and that he has, therefore, the right to maintain and hold his possession ; and that the verdict should be in favor of the defendant.”</p> <p>Verdict for defendant, and after judgment, plaintiff took this writ, and alleged that the court erred in admitting the above evidence, in refusing to affirm the foregoing points, and in the portions of the charge above noted.</p> <p>A treasurer’s deed is not within the recording acts. The parties had notice. The sale of a treasurer requires unusual publicity by publication of notice. It was a public sale, and a deed was made to the commissioners, which remained in a public office. A sheriff’s deed does not come within the recording acts, and the publicity of a treasurer’s sale is greater than that of a sheriff’s. Investigation would have disclosed the deed in Northumberland county, and all the facts. The purchaser was bound to search for outstanding taxes, and such inquiry would have shown when the land was redeemed by Northumberland county. At common law the purchaser was not required to record deed. The law is entirely statutory, and no prudent purchaser of unseated lands will buy them without examining the tax books of the county where lands are situated. Deeds of this character have never, so far as we can ascertain, been recorded in any of the counties of this state.</p> <p>The acknowledgment of the treasurer’s deed to commissioners, was in the form prescribed by the act, viz., “Acknowledged by the grantors before one of the justices of the peace,” &c. It is, therefore, within the exact terms of the recording act.</p> <p>The acknowledgment of a deed to county commissioners, was not directed by the act to be in open court, as treasurers’ deeds to individuals and sheriffs’ deeds, were by law required to be acknowledged. No argument against the necessity for recording a treasurer’s deed to commissioners, where the land lies in another county, can be drawn from the fact that sheriffs’ deeds are not within the recording act. The legislation in the two cases is essentially different. The Supreme Court has given two reasons for holding that sheriffs’ deeds are not within the recording act. The one as given in Shrider’s Lessee v. Nargan, 1 Dall. 72; McCormick v. Meason, 1 S. & R. 96,. and Naglee v. Albright, 4 Whart. 297, is, that they are acknowledged in open court, and the minute made by the prothonotary is equivalent to recording. The other as given in Seechrist v. Baskin, 6 Barr 154, is “ that the authentication prescribed for it is acknowledgment before court and not before a magistratethis, says the court “ shows that it is not within the provisions of the recording laws.” Now none of these reasons can be applied to a treasurer’s deed to county commissioners.</p> <p>It is a fallacy to assume that an entry in a commissioners’ book, is equivalent to an enrolled decree of a court. The records of one county are not notice to purchasers of land in another. Northumberland county was bound to put her deed on record in Columbia county. There is no theory of law which requires a purchaser in one county to go into another county to get his title. After the five years, the commissioners own the land, just like other individuals, and are within the recording acts.</p>

<p>1. The rule as to subrogation exists only when both funds are in the hands of a common debtor of both creditors.</p> <p>2. The equities between parties cannot be considered upon a motion for subrogation. To entitle a party to subrogation his equity must be strong and his case clear. In such applications great care should be taken by the court that the subrogation will work no injustice to the rights of others ; and it will never be allowed where the equity of the party seeking it is no stronger than the equity of the party affected by it.</p> <p>3. Mechanics’ claims have no superior equities over other liens. If as a class they have rights to subrogation at all, it is not because they possess superior merit.</p>

<p>1. The general rule is that a debtor may appropriate his payments as he sees fit at the time of making them; but if neither he nor his creditor makes any specific application of them the law will do so. In the case of running accounts, composed of various items of debit and credit occurring at different times, and no special appropriation of the payments is made by either party, the law will apply the successive payments or credits to the discharge of the debit items antecedently due in' the order of time in which they stand in the account; in other words, each item of payment or credit is applied in extinguishment of the earliest debit items in the account, until the whole payment or credit is exhausted.</p> <p>2. The general rule is that the declarations of a grantor, made after he has parted with his title, are not admissible for the purpose of impeaching it; but the rule has been so modified that when the bona tides of the transaction is assailed by creditors on the ground of fraud, and some testimony is introduced tending to show collusion, then such subsequent declarations of the grantor are admissible.</p>

<p>1. Where in a lease there is an express and unconditional agreement to repair and keep in repair, the tenant is bound to do so, though the premises be destroyed by fire or o.ther accident.</p> <p>2. When a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract, and therefore if a lessee covenant to repair a house, though it be burned by lightning or thrown down by enemies, yet he is bound to repair it.</p>

<p>Error to the Court of Common Pleas of Union county: Of May Term 1879, No. 198.</p> <p>Assumpsit by J. H. Wagner against Billmeyer Dill & Co.,;to recover the contract price of a car-load of lumber.</p> <p>The facts in substance were these: On the 7th September 1874, the defendants gave the plaintiff an order to furnish 2274 feet linear measure, white oak timber, and to mark as shipped by defendants to Phillipsburg Manufacturing Company at Hobo-ken, N. J., price, $27 per thousand. The plaintiff same day accepted the order; and on the 23d of September 1874, notified the defendants that one car-load was shipped; whereas in fact, it was not shipped until the 26th of September. Whereupon the defendants notified the Phillipsburg Company, which sent a barge to Hoboken, to receive the lumber. It appeared, however, that the plaintiff, instead of furnishing the lumber himself, contracted with the Elimsport Lumber Co., to fill the order; and this latter firm, instead of consigning the lumber to the Phillipsburg Manufacturing Co., at Hoboken, N. J., directed it to the Jersey City Car Shops by way of Rupert station; and in consequence of this misdirection the lumber went to the wrong' place, over different railroads, and did not reach its intended destination. The lumber was found by the Phillipsburg Manufacturing Co., on the 10th of October, on a car in the Erie car shops, Jersey City.</p> <p>The plaintiff sued the defendants to recover the contract price of the car-load of lumber, viz.: $169.91; and the defendants set up as a defence that the damages to them by reason of the delay occasioned by the misdirection of the lumber, was equal to the amount of the plaintiff’s bill, and therefore denied his right to recover.</p> <p>It appeared that $52.20 additional freight was incurred by reason of the misdirection. The defendants also claimed that they were entitled to set off $126, which they had been charged by the consignee as compensation to the latter for expenses incurred in sending a barge to Hoboken to receive the lumber, and for wages paid to a foreman who was kept idle some ten or fifteen days for the want of the lumber. There was no evidence to show that plaintiff was informed that the barge was to meet the lumber, nor that a foreman would be out of' employment unless the contract was performed.</p> <p>The court, Junkin, P. J., of the Forty-first Judicial District, rejected the evidence in relation to this detention of the barge and the pay of the foreman, and instructed the jury that they should exclude both from their consideration. The verdict was for the plaintiff for $105.08, when defendants took this writ, and, inter alia, assigned for error the rejection of the above testimony and the instruction of the court.</p> <p>The loss complained of arose from the reliance which the defendants placed upon the plaintiff’s fulfilment of his contract.</p> <p>The true measure of damages is the actual loss which the vendee sustains by not receiving the advance on his contract price upon any contracts which he had made in reliance upon the fulfilment of the contract by the vendor: McHose v. Fulmer, 23 P. F. Smith 367; Collins v. Baumgardner, 2 Id. 461. The incurring of the expense was reasonable, relying on the truth of the plaintiff’s representations as to the time of shipment and consignment: Fisher v. Val de Travers Asphalte Co., 3 N Y. Weekly Digest 366; Bennett v. Lockwood, 20 Wend. 223; Hadley v. Baxendale, 26 E. L. & E. 398; Dingee v. Hare, 7 C. B. N. S. 145.</p>

<p>1. An assignment for a valuable consideration of demands, having 'at the time no actual existence, but which rests in expectancy only, is valid in equity as an agreement, and takes effect as an assignment, when the demands intended to be assigned are subsequently brought into existence.</p> <p>2. Equity will support assignments of contingent interests and expectancies ; things which have no present actual existence, hut rest in mere possibility ; not indeed as a present positive transfer operating in presentí, for that can only be of a thing in esse, but as a present contract to take effect and attach as soon as the thing comes in esse.</p> <p>.3. The firm of M. was engaged in manufacturing agricultural implements. D. was the general agent of the firm and made sales and receipted for the proceeds. M. being indebted to plaintiffs in the sum of $1350, authorized said agent to assume and pay over to plaintiffs in approved notes or money, out of the proceeds of sales of reapers of that year, said sum, as collateral security, within three months from date. At the same time said agent agreed to turn over said notes or money as specified in said authority. Held, reversing the court below, that while the indebtedness of M. to plaintiffs existed, the latter had the right to the possession of the property specified in the writings: that the agent was bound to deliver it to them, and that M. was excluded from any control or disposition of it which would interfere with the security.</p> <p>[See Ruple v. Bindley, post, p. 296. — Rep.]</p>

5. Assumpsit by John Gaus against the Pennsylvania Central Insurance Company. The summons in this case issued the 21st of December 1875, and judgment was entered for plaintiff January 10th 1876. On July lOtli 1877, defendants obtained a rule to show cause why said judgment should not be opened. The writ of error was not taken until June 10th 1878. The case was not finally disposed of until January 7th 1878. See Camp v. Welles, 1 Jones 206; Dawson’s Appeal, 3 Harris 480; Purd.

<p>Appeal from the Orphans’ Co-urt of Franklin county: Of May Term 1879, No. 7.</p> <p>Appeal of George Eachus from the decree of the court refusing to grant the prayer of the appellant as set forth in the petition in the matter of the will of Phineas Eachus, deceased.</p> <p>Phineas Eachus left a will which contained, inter alia, the following provisions:</p> <p>Item. To my son, Jesse, I give and devise all that house and ground situate on the corner of East and South streets, in the borough of Greencastle, together with the sum of $400. Item; To my sons and daughters named as follows: Mary Cooper, Nancy Hollar, Martha Stine, Sarah Kreps, George, Hannah, James, Joseph, Anna and William, I give and bequeath each the sum of $1000. Item. For advancements, I make George indebted to the amount of $300, Nancy Hollar indebted to the amount of $1000, Mary Cooper to the amount of $1300, and Martha Stine to the amount of $350. The above amounts I require to be accounted for in the settlement and distribution of my estate. Item. If my son, Jesse, should die without issue, it is my will that the portion left to him be equally divided between his sisters, Mary Cooper, Nancy Hollar and Martha Stine, or their heirs. Item. If my son, George, should’ die without lawful issue, it is my will that the portion left to him be equally divided between his brothers and sisters, to wit: Sarah Kreps, James, Joseph, Hannah, Anna and William, or their heirs. Item. All the rest, residue and remainder of my estate, I give and bequeath to my daughters, Mary, Nancy, Martha, Sarah, Hannah and Anna, and my sons, Jesse, George, James, Joseph and William, or their heirs, to be equally divided between them, share and share alike. Item. It is my will, and I so order and direct, that the estate, or portion bequeathed to my sons, Jesse and George, remain in the hands of my executor, in trust, for their benefit, and to that end I only allow my said sons, Jesse and George, to receive annually the interest.</p> <p>William Kreps was appointed executor of said will. He accepted said trust. He died in November 1878, leaving a will wherein his wife, Sarah Kreps, was his sole executrix. After his death she undertook the management of the trust in accordance with the terms of Phineas Eachus’s will.</p> <p>On or about the 28th day of January 1878, James C., William • G., Joseph H. and Anna C. Eachus, now Fulweiler, and her husband, C. H. Eulweiler, and Harriet Eachus, the mother, persons entitled to the remainder in the event of George W. Eachus dying without issue, released to George W. Eachus all their interest in said remainder.</p> <p>Sarah Kreps was the only one of the persons entitled to said remainder who refused to release. Hannah Eachus died before the commencement of these proceedings.</p> <p>On the 4th March 1878, George W. Eachus presented his petition to the Orphans’ Court, and after setting forth certain facts, prayed the court to issue a rule against the said Sarah Kreps to show cause why the said trust estate should not be paid over to the said George, he alleging that the will did not create an active trust. If the court refused this prayer, he prayed that such portion of the fund should' be paid him as was released by the said James, William G., Joseph H. and Anna C. Eulweiler and her husband, and Harriet Eachus, and in the event the court refused the above prayers, he prayed that a trustee should be appointed to take charge of his share in the estate of Phineas Eachus.</p> <p>The court, Rowe, P. J., in an opinion, inter alia, said:—</p> <p>“ The testator distinguishes clearly between the portion or estate bequeathed, and the interest or income annually derived from it. He expressly declares that George shall receive only the interest annually accruing on his portion, and that the principal shall remain in the hands of his executor. The intent is plain to sever the product from its source, and to carry the corpus or principal over to others. There is no rule which requires us to disappoint this manifest intention of the testator.</p> <p>“ The testator not only orders that George shall have the interest only, but there is a bequest over, first to his issue, if any, or if none, to his designated brothers and sisters. For the true reading of the will is, that George’s portion shall remain in the hands of the executor, in trust, for his benefit, as long as he lives, he receiving annually, the interest only. At his death, if he should die leaving issue — that is, children or grandchildren — the corpus or principal to go to them; but if he should die without lawful issue, then to his brothers and sisters. The period for the distribution of the corpus, and for the ascertainment of the persons entitled thereto, is that of George’s decease. The rule against perpetuities is not violated. I might content myself with referring to the case of Bently v. Kaufman, 5 W. N. C. 88, but Deibert’s Appeal, 28 P. F. Smith 296, and Hopkins v. Jones, 2 Barr 69, may be consulted.</p> <p>“ Now, if the will is to be so construed, I need not stop to point out that the release obtained by George is of no value. For if he have issue they will be entitled to the fund.” * * *</p> <p>“ ffm. Kreps was trustee only because he was executor. He who succeeds to the executorship succeeds also to the trust with which it is indivisibly joined. The payment of the legacies and portions according to the directions of the will belongs to the executor’s duties as such. Where a trust is annexed to the office of executor, it must, in case of his death, be exercised by an administrator, d. b. n. c. t. a. The rule must, therefore, be discharged. Mrs. Kreps must file the account of William Kreps, executor of Phineas Eachus, and the register must appoint an administrator, d. b. n., with the will annexed, who will give security and hold the fund as the executor did while he lived. Petition dismissed at the cost of the petitioner.”</p> <p>From this decree the petitioner took this appeal.</p> <p>The will created no active trust. The only purpose of the trust, with respect to George’s share, is to preserve a remainder to his brothers and sisters, upon George’s dying without issue. Such gift over after an indefinite failure of issue, is without effect, and the trust falls with the purpose for which it was created.</p> <p>Under the will it is worth noticing that the gift or bequest, by the first clauses of the will, is of an absolute estate. The title to the estate is in George, by the terms of the will.</p> <p>The directions in the latter clause of the will certainly do not divest the title which the appellant derives under the former clause. The latter clause is simply directory. Its effect is to make the executor the custodian of George’s share or portion. Under this clause in the will, the title to the share or portion remains in the appellant, and the executor is the* hand from which he is to receive the interest. If the portion or share devised had been real estate, a restrictive clause, like the one above, would be regarded as one against alienation, and of no effect.</p> <p>rested his argument on the opinion of the court below.</p>

<p>Error to the Court of Common Pleas of Franhlin county: Of May Term' 1878, No. 214.</p> <p>Trover and conversion by Joseph Rothrock, executor of Robert Gallaher, deceased, for use of Joseph H. Gallaher, against Jane Gallaher, for twenty-three United States bonds, of the value of $80,000, and one promissory note of the value of $150.</p> <p>The questions, as passed upon by this court, are sufficiently illustrated by the following offers of evidence in the court below, and the facts as stated by this court.</p> <p>At the trial before Rowe, P. J., defendant proposed to prove, that in a conversation witness had with S. Y. Shelly (whose deposition was produced by plaintiff), that Shelly told the witness in said conversation, that Seth Zeigler took that trunk himself (speaking of the trunk taken from Kauffman’s), and that the man that took the trunk took the bonds.</p> <p>This was offered to show: 1. That Shelly and Zeigler took these bonds themselves: 2. To show that Shelly charged another person than this defendant with taking the bonds in dispute.</p> <p>Objected to because when the deposition of Shelly was taken he was not asked about, nor was his attention turned to this conversation ; because Shelly did not, in his deposition, testify to any knowledge he had of the taking of the bonds or who had them, and therefore it is not a contradiction of his testimony; because these declarations were made out of the presence of Seth Zeigler, and are wholly irrelevant and collateral to the issue.</p> <p>The'court overruled the objections, on the ground that counsel had no knowledge of this testimony in the lifetime of Shelly. (8th assignment of error.) It was proposed to ask another witness whether Shelly ever’told him that he had opened the Gallaher safe, between the time of the death of Gallaher and the appraisement for Mrs. Gallaher, for the purpose of contradicting Shelly.</p> <p>Objected to, because the answer of Shelly on that subject was conclusive and cannot be contradicted, being a wholly collateral and immaterial fact. Objection overruled. (10th assignment.)</p> <p>The defendant also offered to prove, by John Wright, that he was examined in the case of Rothrock, executor of Gallaher, v. John Wright and Jane Gallaher, in the Court of Common Pleas of Juniata county, about the subject-matter of this controversy. That on that occasion he cannot say that he testified about the little memorandum-book, marked B. F. J., but if he did give testimony on the subject and the numbers on the two leaves torn out of the book, such testimony was correct and true, but that his memory has failed him now. Extract read to the witness and the jury, from the notes of his testimony taken- by Judge Junkin, on the former trial, as part of the offer, as follows: “John Wright. * * * When I went home, the paper that was shown me excited my curiosity, and I examined the book and the paper was gone. I saw where the paper had been. There were two leaves torn out of the little book. I had made a memorandum on that leaf of bonds that I was going to sell. They were the bonds sold to Jay Cooke & Co., and the coupons I sold to Saylor & Stevenson.”</p> <p>It was objected that the witness’ testimony could not be supplemented by such evidence. The court admitted the evidence, saying, “ This is a very old man, sick, and by reason of his old age, his memory, he says, has failed him in the matters inquired of. On principle,' he ought to be allowed to show that what he swore to, was true, with a view to its introduction afterwards from the judge’s notes.” (13th assignment.)</p> <p>On the part of the defence, it was proposed to ask Jane Gallaher, the defendant, whether the package, when opened by Mr. Wright, was in the same condition that it was in, from and immediately after the death of her husband.</p> <p>Objected to because the question necessarily involves the condition of the package at the moment of her husband’s death, and inferentially, its condition before his death, and this the witness is not competent to prove; and because the evidence goes to prove a delivery of the package to her in her husband’s lifetime, which she is incompetent to prove. The court overruled the objections. (14th assignment:)</p> <p>The verdict was for defendant, when plaintiff took this writ, among the assignments of error being those noted above.</p> <p>Evidence of statements contradictory to what & witness has testified to, on the trial of a cause, are inadmissible to discredit him unless he is first examined as to such statements: Wright v. Cumpsty, 5 Wright 102; McAteer v. McMullen, 2 Barr 32; Wertz v. May, 9 Harris 279.</p> <p>The witness, Wright, did not refresh his memory by reference to the notes of the former trial. His memory was a blank, and could not be refreshed. This would have opened the way for the admission of a memorandum made by himself, as independent proof, provided he could swear to its accuracy when it was written. But no such memorandum was produced. In lieu thereof a portion of the judge’s notes was read, to supply omissions in his testimony, the result of a faded recollection. We submit that this was going beyond any recognised authority, and, if sanctioned, will inaugurate a dangerous precedent.</p> <p>To allow Mrs. Gallaher to testify that the package was in the same condition when opened by Mr. Wright and herself, as it was immediately after her husband’s death, was tantamount to permitting her to swear as to its condition at and before his death. If the package was in the same condition the very, instant of his death, it would be an inevitable inference that the condition was the same the instant before his death.</p> <p>The admission of evidence of the declarations of a witness for the purpose of discrediting him, without a previous examination of the witness to the same matter, is in the discretion of the court: Walden v. Finch, 20 P. F. Smith 460.</p> <p>The notes read were a deposition taken in court in a former trial, and the plaintiff had the opportunity of cross-examination. The case is in principle the same as if the witness was dead, insane or sick, or out of the jurisdiction of the court. If the witness had been deceased at the time, the notes of the learned judge would have been admissible: Moore v. Pearson, 6 W. & S. 51; Rhine and Robinson, 3 Casey 30.</p> <p>So of an absent witness: Wright v. Cumpsty, 5 Wright 102. The notes of counsel, showing what a deceased witness testified on a former trial between the same parties, are evidence when proved to be correct in substance, independently of his recollection: Rhine v. Robinson, supra; Philadelphia & Reading Railroad Co. v. Spearen, 11 Wright 300; 1 Greenl. on Ev., 11 ed., sect. 168. If, in cases of disqualifying interest,'the witness has previously given a deposition in the case, the deposition may be read in chancery, as if he were since deceased, or insane, or otherwise incapacitated: Jack v. Woods, 5 Casey 378; Emig v. Diehl, 26 P. F. Smith 359.</p> <p>The language of the Act of the Assembly, April 1st 1870, is “ that no interest or policy of law shall exclude any party to the record from testifying to matters occurring since the death of the person whose estate, through a legal representative, is a party to the record.” There is n-o difference in the meaning of the two expressions, “since the death” of a person, and “from and immediately after the death” of a person. “ Immediately” refers to time, “ after the death.” The moment the breath was out of the body of Mr. Gallaher, “from the time of,” that moment, the mouth of Mrs. Gallaher was opened' to testify to any matter occurring subsequently.</p>

<p>Error to the Court of Common Pleas, of Union county: Of May Term 1879, No. 183.</p> <p>Assumpsit on a book account by Robert J. Mitchell against John C. Motz. The defendant pleaded non assumpsit, payment, and payment with leave to give special matter in evidence. The plaintiff was an attorney-at-law, and this action was for an alleged balance of $317.62, due him by defendant for services rendered. The material facts are stated in the opinion of this court.</p> <p>At the trial before Bucher, P. J., the defendant offered to prove that the plaintiff had in his posssesion a deed from Shem Spigelmey er and wife, to Daniel Weidensaul, for forty-two acres and forty-four perches of land, with a water-power, grist-mill, saw-mill, &c., said deed being for the undivided half of said property. That defendant was the owner of the said property, and purchaser at sheriff’s sale of the interest set out in said deed. That said deed was unrecorded. That Mitchell, the plaintiff, proposed to sell this title paper, and that Motz, for fear said title paper would be destroyed, paid Mitchell $150 in order to get possession of said deed. This offered for the purpose of showing that the plaintiff has $150, obtained from the defendant, under duress, which defendant claims the right to defalcate in this action.</p> <p>The court rejected the evidence, saying: “ There is nothing in the position that a plea of set-off is not admissible under the pleadings, because a set-off can be admitted under the plea of payment, and it is well settled that a set-off arising out of a distinct transaction can be set-off, but the difficulty we have in the admission of the evidence is this: That the defendant, by virtue of the sheriff’s sale, acquired no special property in the deed, and that the payment of the $150 on his part was voluntary, and for that reason it cannot be recovered back, and though it is true that the doctrine of duress has been extended from what it was at common law, so as to include money paid, in order to extort it from a party, in order to enable him to get the possession of his goods, yet we cannot say that this deed was the goods and chattels of the defendant, and for that ¡reason we reject the evidence.” (First assignment of error.)</p> <p>The defendant also offered to prove that the plaintiff had in his possession the deed mentioned in the preceding offer, and, notwithstanding the defendant’s right to a subpoena duces tecum,, he feared the evidence would be destroyed and he would suffer a great loss if he refused to comply with the demand of the plaintiff for $150 in money, and that he paid that sum of money not voluntarily, but under duress per minas, of withholding and destroying the evidence.</p> <p>The court rejected the evidence, saying: “There is no offer to prove that the plaintiff threatened to destroy the deed as an instrument of writing, and we cannot hear evidence of the hopes and fears and expectations of the defendant not communicated to’ the plaintiff.” (Second assignment of error.)</p> <p>The verdict was for the plaintiff, when defendant took this writ and alleged, inter alia, that the court erred as set forth above.</p> <p>The withholding of a title paper under circumstances such as are presented in this case, whereby one party is constrained to pay money to another, to get possession of such title paper under a well-grounded fear of loss and injury, and without means of preventing such loss and injury, except by paying the money demanded, is within the doctrine of duress: White v. Heylman, 10 Casey 142; Miller v. Miller, 18 P. F. Smith 486.</p> <p>The offer to prove that the payment of the money was not voluntary, but under the threat of withholding and destroying the evidence, and that the plaintiff had in his possession the deed mentioned in the preceding offer, rvas distinctly made. And it is respectfully contended that the defendants below had the right to an explicit ruling upon the offer; to show that the deed in question was then and there in the hands of the plaintiff at the time of the promise and the payment of the $150 ; to show the facts and circumstances under which he paid it; and as he offered to do in his third and fourth offers, that he had well grounded reasons to lelieve that his evidence, contained in said deed, would be destroyed, unless he paid the money demanded. And it was also apparent, from the second offer, that the defendant below, notwithstanding his right to a subpoena duces tecum, had not the means to prevent the injury threatened.</p> <p>Being rightfully in possession of the deed, and having the right to continue in possession until such time as the -plaintiff in error should, by availing himself of the provisions of the statute law, become entitled to its delivery to him, defendant in error was guilty of no duress by withholding it. “ Duress implies an illegal detention:” Gulliver v. Cosens, 9 Jur. 666. Goods must be “ wrongfully withheld” to avoid a note given to obtain possession of them: White v. Heylman, supra.</p> <p>To constitute a payment under duress per minas, the threats must emanate from the one by -whom the payment is demanded. It follows, as a corollary, that an offer to prove payment under duress per minas, should specifically allege ~by whom it is claimed the threats were made, and set forth the grounds upon which the alleged apprehensions, inducing the payment, were based. Otherwise testimony would be admissible, under the offer, of fears and expectations on the part of the payer that, however real they might be, and however well calculated to induce unwilling payment, were in no sense the creation of the payee, and for the exciting of which he could in no manner be held responsible.</p> <p>The payment of the $150, by the defendant to the plaintiff, was a purely voluntary payment, for which there was a sufficient consideration, and it cannot be recovered back.</p>

<p>Error to the Court of Common Pleas, of JPranTdin county: Of May Term 1879, No. 216.</p> <p>Scire facias sur mortgage issued by George W. Smith and John H. Kausler against Jacob K. Harry.</p> <p>On the 28th day of May 1872, Jacob K. Harry, as executor of the last will of George J. Harry, deceased, executed to the state of Maryland his bond in the sum of $20,000, with George W. Smith and John H. Kausler as sureties thereon, conditioned as follows : “ The condition of the above obligation is such, that if the above bounden Jacob K. Harry shall well and truly perform the office of executor of George J. Harry, late of said county, deceased, according to law, and shall in all respects discharge the duties of him required by law as executor aforesaid, without any injury or damage to any person interested in the faithful performance of the said office, then the above obligation shall be void; it shall otherwise be in full force and virtue in law.”</p> <p>On the same day Harry executed and delivered to his said sureties a deed of mortgage for a lot of ground in Franklin county, Pennsylvania, conditioned as follows : “ Provided, that if the said Jacob K. Harry, do and shall well and truly save harmless and keep indemnified the said George W. Smith and John H. Kausler from any and all loss, cost, damage and expense which they could or might be put to by reason of their being my sureties on said bond, then this mortgage shall be void, otherwise to be and remain in full force and virtue in law.” This mortgage was duly recorded on the 12th of June 1872.</p> <p>On the. 8th of April 1873, William McCrory obtained a judgment by confession against Harry, the mortgagor, in the Common Pleas of Franklin county, for $1000.</p> <p>On the 5th August 1873, Jacob K. Harry settled his sixteenth account as executor of George J. Harry, deceased, in the Orphans’ Court of Washington county, Maryland, which contained a schedule of distribution to the legatees, and which showed a balance in his hands, thus distributed, of $2000. This account was the same day approved and ordered to be recorded.</p> <p>On the 14th April 1874 he filed his seventeenth account, showing a balance of $1006.18 in his hands, which was approved and the balance distributed by the court.</p> <p>The legatees were eight in all. The balance on the sixteenth account was paid by check of Kausler for $1750, dated 5th August 1873, and the executor’s own legacy of $250.</p> <p>The balance on the seventeenth account was paid by the executor’s commissions and dividend, with'$134.77, advanced by Kausler by check dated 3d August 1874.</p> <p>These several advancements were made by Kausler after the confirmation of the respective accounts, on.which they were paid, but not upon the request or demand of any of the parties in interest. Harry, the executor, was insolvent; excepting the mortgaged premises he had no property or resources whatever but household furniture worth $300. This fact was known to Kausler at the time, and the money was advanced by him because he believed that those entitled to the money would begin proceedings at law to compel payment by the sureties.</p> <p>McCrory sued out writs of execution upon his judgment against Harry, and by virtue of these sold the mortgaged premises at sheriff’s sale, himself becoming the purchaser for the sum of $50. The sheriff’s deed was acknowledged 11th December 1876.</p> <p>Kausler sued out a scire facias upon his mortgage 20th January 1877. It was on this latter proceeding that this case arose. Mc-Crory having been allowed to intervene made defence to the action on several grounds.</p> <p>The court below, to whom the case was submitted without a jury, ruled the case against the plaintiffs, in an opinion, inter alia, saying:</p> <p>“ I think a correct statement of the law on the facts found to be this: the bond was a contingent liability, but notwithstanding there was no suit to fix the executor with a devastavit and it was not judicially ascertained that the assets were no longer to be reached by an execution (Commonwealth v. Evans, 1 Watts 439), yet when the Orphans’ Court, on the 5th of August 1873, approved the sixteenth account which distributed the sum of $2000 to the legatees, awarding a definite sum to each of them, thereby fixing the amount of the executor’s personal responsibility, that was all that was necessary as a pre-requisite to a suit on the bond. For such is our law, and since it does not appear in evidence what the law of Maryland is, I am to assume that it is the same as our own. See Commonwealth v. Stub, 1 Jones 157; Commonwealth v. Wenrick, 8 Watts 161. A judgment or decree against the principal will authorize an action against the surety on the bond; nothing more is needed. And where the right of the legatee to demand payment from the executer is determined by due course of law, then it becomes an absolute debt, for which the surety is liable on his bond. Furthermore, here the executor resided in Pennsylvania, and suit would lie on the bond against the surety without previous recourse to the principal: Commonwealth y. Wenwick, supra. Smith and Kausler, the sureties on Harry’s bond, were therefore liable to suit on the bond, at the instance of the legatees, for the sums due them on this distribution, immediately on the passing of the sixteenth account. And the observations are correct with regard to the seventeenth account.</p> <p>“ The payments by Kausler therefore were not voluntary in the sense that they were made before the debt became an absolute one, and before the sureties became liable to suit on the bond. They were voluntary payments only in the sense that they were made before any demand by those entitled, and not upon any suit or proceeding in invitum.</p> <p>, “ But the question still remains whether a payment voluntary in this latter sense is protected by the mortgage. For the mortgage is an instrument of mere indemnity to save the sureties harmless, not from liability on account of their suretyship, but from ‘ any and all loss, cost, damage and expense’ by reason thereof. Now although, as I have shown, the sureties were liable at the time of the payment by Kausler, to be called on and compelled to pay, yet it did not appear with legal certainty that they would be called on, in the absence of any demand by those entitled to compel payment; for non constat that such demand would ever be made, and if not there would be no loss or damage. As against William McCrory a subsequent judgment-creditor, the mortgagees could not voluntarily create a breach of the condition in the mortgage by turning that which was only a liability into an actual loss, of their own head without any motion on the part of those entitled to demand payment. In Crippen v. Thompson, 6 Barb. 532 (cited U. S. Digest, 108, 111, 2042), it was held ‘ that in order to recover upon a bond of mere indemnity to save the obligee harmless from another bond executed by him, the obligee must show damage and that involuntarily sustained: the damage must have been suffered or paid by compulsion, by some proceedings in .invitum against him.’ See also U. S. Digest, 24, 111, 411, 414, 420.”</p> <p>The court therefore found as a conclusion of law, that said mortgage was not an indemnity against mere liability, but against loss, cost, damage and expense, and that the mortgagees could not voluntarily and without demand upon them, convert their liability into loss, but only after proceedings in invitum. *</p> <p>This ruling was assigned for error.</p> <p>The settlement of his account and its confirmation by the court, fixed the executor’s liability, and non-payment thereafter was a breach of-his bond: Commonwealth v. Moltz, 10 Barr 530.</p> <p>It determined also the liability of the sureties; it was thereafter to be measured by the liability of the principal; it was thereafter not contingent, but absolute: Patterson’s Appeal, 12 Wright 342; Boehmer v. Schuylkill Co., 10 Id. 452; Stovall v. Banks, 10 Wallace 583.</p> <p>The breach of the bond occurs whenever the claim becomes a lawful one, capable of being enforced, and the surety is put in jeopardy. The latter is not bound to wait until an action is brought against him before proceeding for indemnity.</p> <p>Although, says Lord Keeper North, the surety is not troubled or molested for the debt, yet, at any time after the money becomes payable on the original bond, this court will decree the principal to discharge the debt, it being unreasonable that a man shall always have such a cloud hang over him: Renelaugh v. Hayes, 1 Vern. 188.</p> <p>In the absence of any express authority we cannot agree that the law regards such an indemnity as this available only after actual loss. There is no warrant for thus limiting its character. The following cases are irreconcilable with such rule: McCann v. Farley, 2 Casey 173; Huzzard v. Nagle, 4 Wright 181; Bamford v. Keefer, 18 P. F. Smith 390. The settlement of an administration account, confirmed by the court, is tantamount to a final judgment obtained as against the administrator: Commonwealth v. Moltz, supra; Commonwealth v. Evans, 1 Watts 439; Commonwealth v. Wenrick, 8 Id. 159.</p> <p>If obtaining a judgment against a surety be held such a damage as works a breach of the contract of indemnity against damage, why shall not the settlement of the account in the present case be so held. See Bamford v. Keefer, supra; Stroh v. Kimmell, 8 Watts 157; Leber v. Kauffelt, 5 W. & S. 442; Constant v. Matteson, 22 Ill. 546.</p> <p>The liability of Smith and Kausler, as sureties in the bond of Harry, was originally contingent. No liability attached to them until the personal responsibility of their principal for the debt was first established, either in an action at law, or by a decree of the Orphans’ Court, fixing the amount of money in his hands and making distribution: Commonwealth v. Evans, 1 Watts 437; Commonwealth v. Wenrick, 8 Id. 159; Myers v. Fretz, 4 Barr 346; Commonwealth v. Stub, 1 Jones 151.</p> <p>The cases cited by plaintiff in error do not support his contention,' and are plainly distinguishable from this case. When Kausler advanced the money to Harry, no demand had been made either upon him or upon his principal, for any part of the money, by any of the legatees. No judgment had been recovered against the sureties. No suit was brought, or even threatened. It was a purely voluntary and unsolicited payment by Kausler. Even the'principal did not request him to pay the money. We submit, therefore, that the court ruled correctly, when they held that the payment by Kausler was purely voluntary; that he could not, as, against William McCrory, create a breach of the condition of indemnity in the mortgage, by.turning that which was only a liability into an actual loss, at his own volition, without any motion on the part of those entitled to payment: Crippen v. Thompson, 6 Barb. 534; 3 Pars. on Cont. 186; Weller v. Eames, 15 Minn. 461; Churchill v. Hunt, 3 Denio 32; Beaver v. Beaver, 11 Harris 169.</p>

<p>Error to the Court of Common Pleas of Fulton county: Of May Term 1879, No. 188.</p> <p>This was a mandamus issued by The Commonwealth of Pennsylvania, ex rel. John Robinson and James P. Nelson and William H. Nelson, administrators of William S. Nelson, deceased, against David Montgomery, George Stouteagle, Thomas Humbert, William Warthin, Leonard Hohman and Captain George W. Skinner, school directors of the township of Ayr, in the county of Fulton.</p> <p>On the 24th of March 1865, an act was passed by the legislature, providing: “That the board of election officers of Ayr township, in the county of Fulton, be and they are hereby authorized and directed to levy, assess and collect a sufficient sum to pay to each volunteer who was credited to said township, under the call of the President of the United States, prior to the 19th of December 1864, and to each man drafted from said township, under said call, the sum of $300 ; and all bonds or obligations, given to secure the payment of said sums are hereby made valid and binding on said township Acts of 1866, p. 772.</p> <p>Pursuant to this act, the election board of Ayr township had levied and assessed a tax for the purposes therein expressed, including the commutation money paid to four drafted men, each the sum of $300, by John Robinson and William S. Nelson, two of the members of the bounty committee, selected by the people of the township at a public meeting, to serve them in procuring volunteers, and raising money to pay bounties, to fill the quota of the township.</p> <p>The duplicate for the collection of this tax was in the hands of the collector, and he was proceeding to collect the tax, when he was arrested by an injunction, issued out of the Common Pleas of Fulton county, on the application of tax-payers of the township. This injunction was based upon and supported by an Act of Assembly, approved the 30th of December 1866, entitled, “An act repealing an act approved the 24th of March 1865, entitled, an act to legalize the bonds issued by the election officers of Ayr township, in the county of Fulton, for the payment of bounties to volunteers and drafted men, under the call of the President of the United States, prior to the 19th of December 1864.”</p> <p>The act provided that the original Act of the 24th of March 1865, should be repealed, except so far as the same may have relation to bonds not exceeding twenty-five in number, issued to drafted men or substitutes, who actually went into the service of the United States, after September 1st 1864. * * * “Provided further, that nothing in this act, or in the act to which this is a supplement, shall be so construed as to authorize the levying, collecting or payment of any money as commutation, or to repay or refund to any person or persons any money so paid. And provided, further: That nothing in either of' said acts shall authorize the collection of any tax or taxes, now assessed or hereafter to be assessed, for the payment of the bonds mentioned in this act, until after the legal right of the person or persons holding the same, to receive the amount thereof, shall have been ascertained by the court:” Pamph. L. of 1866, Appendix, p. 1537.</p> <p>The law remained in this condition until the 4th day of May 1876, when an act was passed, entitled, “An act for the relief of John Robinson and the estate of William S. Nelson, deceased.” The first section of this act provided: “ That as soon after the passage of this act as practicable, it shall be the duty of the school directors of the township of Ayr, in the said county of Fulton, and they are hereby required to levy and assess, upon the basis of the last adjusted valuation for school purposes, for the said township, a tax sufficient to repay and reimburse unto John Robinson and James P. Nelson and William H. Nelson, administrators of William S. Nelson, deceased, the sum of $7 00, with interest thereon from the 1st of July 1874; the said tax to be levied, assessed and collected as school taxes are, by existing laws, levied, assessed and collected in said township, and the collector of the said tax shall, as soon as he receives the same, pay over to the said John Robinson and James P. Nelson and William H. Nelson, administrators of William S. Nelson, deceased, the said sum of $700, with interest thereon from the said 1st day of July 1864.” See Acts of 1876, pp. 201, 202.</p> <p>The school directors refused to obey the law. Application was made to the Court of Common Pleas of Fulton county for a writ of alternative mandamus to compel the school directors to levy and collect the tax. They filed an answer, denying the validity of the law, alleging it to be unconstitutional. Issues were framed and certain facts found by a jury, in the nature of a special verdict.</p> <p>. The only question upon the record was the constitutionality of the law, read in the light of the facts so ascertained by the jury.</p> <p>The main facts were briefly, as follows: At the commencement of the war, at a meeting of the citizens of the township convened for the purpose of taking measures to fill the quota of the township, under the call of the President for troops, a bounty committee was appointed, charged with the duty of raising money to pay bounties and procure volunteers for the township. Of this committee John Robinson and William S. Nelson were members, and the committee continued to act for the township, in pursuance of their original appointment, with the consent of the citizens, until the close of the war.</p> <p>In one of the drafts during the year 1864, the quota of the township was fixed and given by the provost marshal at a certain number of men, and the authorities of the township proceeded to fill the quota, as originally given and ascertained by the provost marshal, with volunteers, by paying bounties to them. Considerable money for this purpose was raised by voluntary subscription.</p> <p>Afterward the provost marshal, alleging a mistake in the original quota, required the township to furnish four additional men, which demand the township could not fill with volunteers, and consequently four citizens of the township were drafted to supply the said alleged deficiency.</p> <p>Of these four drafted men at least two had paid towards filling the quota with volunteers, and one at least would have been exempted on account of physical disability. At this time the government accepted $300 as commutation money in lieu of a man, and credited the locality upon the payment of that sum as though a man had actually been furnished.</p> <p>John Robinson and William S. Nelson, after consultation with a considerable number of the taxpayers of the said township (although not a majority), and receiving their consent, advanced $1200, of their own means, to pay the commutation money for these four drafted men, and thus the quota of the township was filled, and the necessity for a further draft obviated. The money they paid, acting for the township in the capacity of members of the bounty committee. Before the injunction was issued as hereinbefore stated, the collection of taxes had so far proceeded under the provisions of the Act of 24th March 1865, that $500 of the sum of $1200 had been repaid to Robinson and Nelson.</p> <p>The Act- of 4th May 1876, was passed to provide means for the repayment to them of the remaining $700 with interest from July 1st 1864.</p> <p>On the 11th of January 1878, the relators petitioned the Court of Common Pleas, setting forth the above facts and praying for a writ of mandamus, directed to said school directors to assess and levy a tax to repay said balance due. The directors made return to the writ, alleging that the Act of Assembly was unconstitutional. The Commonwealth demurred and the defendants joined therein. The court, Rowe, P. J., entered judgment for the relators in an opinion, inter alia, saying:</p> <p>“And first I am directed to art. 8, sect. 7, of the constitution: ‘ The General Assembly shall not pass any local or special laws * * * regulating the affairs of counties, cities, townships,, wards, boroughs or school districts, * * * or providing or changing methods for the collection of debts. * * * Nor shall any law be passed granting powers or privileges in any case when the granting of such powers and privileges shall have been provided for by general law, nor when the courts have jurisdiction to grant the same or give the relief asked for.’</p> <p>“ I think the act in question is clearly outside the terms of this last quoted clause, for by a special law only could the power have been conferred, and the courts could not give effect to the moral obligation by providing a remedy, which was the relief sought at the hands of the legislature.</p> <p>“ Then, as to regulating the affairs of township and school districts. I am of opinion that to supply a legal remedy when there is a prior moral obligation in the case of a township is not to regulate the affairs of such township within the meaning of this prohibition. I see no reason why the legislature may not do that in the case of a township, which they may do in other cases: Lycoming v. Union, 3 Harris 166.</p> <p>“ In the next place, there is nothing in the act which changes the method for the collection of a debt. But it is urged that it does provide a method for the collection of a debt. I think this clause must be read in the light of the context, and remembering that before the passage of this act there was neither debt nor remedy. The clause we are now examining has regard to cases where there was both debt and method of collecting it, and in such cases the legislature shall not interfere by special law, either to change the former remedy or to provide an additional’ one. This law makes the imperfect obligation a perfectly legal one. Then it does no more than the general law would have done, enforce payment by taxation. The question seems to be this, whether this clause forbids in every case the adding a legal sanction to a moral obligation, by special legislation. I do not suppose it has that intent or scope. But I am directed further, to art. 9, sect. 1. ‘All taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax and shall be levied and collected under general laws.’</p> <p>“ Now, first of all, this section does not execute itself. It does not make void all laws existing on the statute book which can be covered by it. This question, of great concern, has been settled in Lehigh Iron Co. v. Lower Macungie Township, 31 P. F. Smith 482. This section is not therefore a repeal per se of the Acts of 1864, 1865 and 1866, exempting the property of soldiers. Nor are those acts repealed by the Act of 1873: Rounds v. Waymart Borough, 31 P. F. Smith 395.</p> <p>“ This Act of 1876, so far as it exempts ‘ the person and property of all soldiers in the war of the rebellion, and the widow of such soldiers,’ ought, I think, to be construed with reference to the general laws and as applying these laws to the special case before the law-makers. But if this is no? so, still the soldiers and their widows constitute a class exempted from taxation, and we have another class, viz.: ‘ All persons and property that have already contributed to and paid the taxes assessed under the former act for the same purpose’ — a righteous exemption, if it can be called an exemption. ‘ Now all taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the same.’ Before the new constitution was adopted, ‘the right of the legislature ¿o exempt certain classes of property as well as classes of persons from taxation, was always recognised in this state: Butler’s Appeal, 23 P. F. Smith 451. And it is said the power to classify subjects of taxation is not opposed to the constitution of 1874: City of Pittsburgh v. Roup, 1 W. N. C. 254-57; Williamsport v. Brown, 4 Id. 339, 340; Kittanning Coal Co. v. Commonwealth, 29 P. F. Smith 100 ; Brightly’s Digest 354. Sub. numero 351.</p> <p>“ But there still remains the provision that all taxes shall be levied and collected under general laws. Now in a narrow sense, at least, these taxes are provided for in the special laws and are to be levied and collected under the general law, that is as school taxes are by existing laws.</p> <p>“ It may be said that the above special act does nothing more than make provision for levying and collecting taxes; that the taxes for the repayment of the relators are levied and collected under this act and not under a general law.</p> <p>“ And that is hard to answer. Yet it does not seem to me that the language of this section involves a denial of the right to impose a tax by special law in every case. If no tax- can be imposed except by general law, in any case whatever, then it will be difficult to sanction this act. In this view the act appears to be unconstitutional. But it is far from certain that this is the right view.</p> <p>“ I have said enough to show that the act is not a clear and palpable infringement of the constitution. Then it would not be becoming in me, sitting in an inferior court, to declare the act void: Menges v. Wertman, 1 Barr 223. This clause has not received interpretation by the Supreme Court, which is co-ordinate with the legislature, and in the advance of such authority I cannot say the words must not be taken in that sense which would comport with the validity of the law.</p> <p>“ On the whole then I must hold the law to be constitutional, which will require me to enter judgment on the demurrer for the plaintiffs, and it is accordingly so done. Let judgment be entered for the relators, and let a peremptory writ of mandamus issue.”</p> <p>The act is unconstitutional, because both local and special, and is clearly within the prohibition of article 3, sect. 7, of the constitution. The purpose and effect of the act is to regulate the “affairs” of the township. Is it not an attempt to regulate the “ affairs” of a township, when i^he purpose is to make the township responsible for a claim which could not be enforced by law, and to provide for the payment of such a claim, by requiring the officers of the township to assess, levy and collect from the taxpayers of the township, a sum sufficient for the purpose ? It provides the method for the collection of aylebt.</p> <p>1’t is no answer to this objection to say that taxation is the ordinary method for the collection of debts due from townships, nor is it any better answer to say that the claim here is not for a debt, but an imperfect obligation, made valid and enforceable by the act. The relators claim it is a debt due them in equity and good conscience, and the legislators so regarded it when they provided for its payment. It could not have been enforced at law, but this defect the legislature proposed to supply. It provided a method where there was none before; not that there are no methods by which townships could be compelled to pay their debts, but because these methods were not available in this particular case. The infraction of the law is as palpable as though a new method had been originated.</p> <p>But the Act of Assembly is in more direct conflict still, with sect. 1, art. 9, which provides that “ all taxes shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.” ' Unless there is something to be found in the constitution, qualifying this section, the matter is too plain for argument. Standing by itself, i-t admits of no question or doubt. Here is a special act providing for taxation for a special purpose and occasion, without a single feature to relieve its antagonism to the constitutional provision.</p> <p>The constitution does not prohibit special legislation except it falls within some one of the prohibited subjects. Outside of those subjects, the legislature has as plenary power to pass, in the manner prescribed, special acts under the new constitution as it possessed under the old.</p> <p>“ The General Assembly shall not pass any local or special law, regulating the affairs of counties, cities, townships, wards, boroughs or school districts,” what does it mean? It seems to us that this general prohibition, preceding as it does an enunciation of certain specified matters relating to these municipal bodies, .must be held to embrace and refer only to matters of the same description and character as those expressly mentioned. The generality of the language mentioned must be restrained by the subsequent classification.</p> <p>Here was an imperfect obligation resting upon the township to reimburse Robinson and Nelson for money expended by them for the public good, namely, to relieve its citizens from the draft. It was expended under a promise of repayment by taxation.</p> <p>The duty of reimbursement rested only in good morals, lacking a remedy sufficient to compel its due observance. This act was passed to furnish that remedy. Such a defective obligation has always been esteemed in Pennsylvania vigorous enough to sustain the interposition of legislative aid, without involving a breach of constitutional provision. How such an act can, in any proper or constitutional sense, be termed a regulation of the affairs of a township, we are not astute enough to perceive. It does not approach, .either in letter or in spirit, any of the specified subjects of prohibition.</p> <p>How can an act which creates a debt against the township, and provides for the ordinary mode of its payment, namely, by taxation, be obnoxious to the imputation of “ providing or changing the method for the collection of debts ?” We can see nothing in the classification of the exempted persons, or in the extent of the territorial limits, within which the tax is to be levied, or in the want of uniformity of the tax itself, to offend against the constitutional provision.</p> <p>The act provides no special method for the assessment or collection of the tax, but refers the whole matter to the operation of general laws. It is as though the general law had been incorporated into and written in the act itself.</p>

<p>Appeal from the Orphans’ Court of Franklin county: Of May Term 1879, No. 179.</p> <p>Appeal of Sarah C. Shoemaker from the deoree of the court in the matter of the petition of Abraham Grove, trustee of said appellant. John Shartle, by his will, dated April 30th 1860, gave to each of his seven children the sum of $6000, and after making certain other, bequests, directed that his said seven children should share equally in whatever excess should remain. Of this will he appointed Abraham Grove and Samuel Shartle executors.</p> <p>By a codicil, bearing date 18th September 1860, he directed, among other things, as follows:</p> <p>“ I do hereby further direct that, as my daughter Sarah Catharine has been deprived of the use of her hearing, it is my will that the said Abraham Grove shall act as her guardian and agent, and I do hereby constitute and appoint him as such to take charge of all her interest in my estate, and to manage the same to the best advantage, and to settle with her annually from and after she arrives at the age of twenty-one years without the form of filing an account in the Orphans’ Court, it being understood that said Grove is to be allowed for his services not exceeding one per cent, on his accounts so settled, and it being further understood that said Grove may, at any time he may deem it proper and just, resign the guardianship and agency hereby put upon him.”</p> <p>The said John Shartle died on the first of October 1860. His daughter Sarah Catharine is now about thirty-eight years of age, and is married to J. C. Shoemaker. She is the appellant in this case.</p> <p>By virtue of the above provision in the will, Mr. Grove retained in his hands the share of the said Sarah Catharine, amounting to $7700. He paid over to Mrs. Shoemaker annually the interest accruing on these funds. On the 17th December 1878, he presented his petition to the Orphans’ Court, setting forth that said trust had become a burden to him, and claiming a right to resign the same at will, prayed the court to appoint a successor. Whereup on the court granted a rule upon all parties in interest to show cause, &c.,</p> <p>To this rule Mrs. Shoemaker filed an answer, wherein she, inter alia, averred:</p> <p>“ That she really believed her deceased father intended, by said codicil, simply to repose in said Grove, who is your respondent’s brother-in-law, a personal trust and confidence, and that her said father intended that said Grove might at any time he saw proper, hand her estate over to her in her own right; that she verily believes that her said father never contemplated, by the use of the words ‘ guardian and agent,’ a trust in the legal acceptation of the term, but that he intended simply to request said Grove to aid her in the management of her estate, until such time, as he, Grove, thought proper to resign the trust and commit the estate to her, the said Sarah Catharine; that it is true, as stated in said will, that your respondent’s hearing is somewhat defective, but not to such an extent as to disable her from transacting business or carrying on any ordinary conversation : that your respondent is fully capable and competent to take charge of her said estate, and manage it with care and prudence; that since the death of her said father, your respondent has married Isaac Shoemaker, of Montgomery township; that her husband is a well-to-do farmer of said township, possessed of an estate in his own right worth not less than $8000; that he is kind and affectionate to her, and sober and industrious, and your respondent believes, that if it should he the opinion of your honor that the estate cannot be turned over to her directly, but that the trust as claimed by petitioner is a valid continuing one, capable of being so transferred to a successor named by the court, that it would be to her interest and the interest of her child, that her said husband should be appointed her trustee, upon his giving security approved by the court; but that she insists first that she is entitled to said estate freed from any trust,” &c., &c.</p> <p>The court held that by the terms of the will Mr. Grove had an absolute right to resign; that the trust was an active one, and appointed Mr. Brewer in the place of Mr. Grove. This action was assigned for error by Mrs. Shoemaker, who took this writ.</p> <p>The peculiarities of this trust, if it be a trust, are, the whole equitable estate is vested in the.cesím que trust; she is given the unrestricted enjoyment of it, without limitation as to the time or amount, the restraint, if any, being only as to the management of the fund; the purpose of the trust is not to protect against improvidence, nor debts, nor the control or interference of a future husband; the duration of the trust is undefined, except that the trustee may resign it at will; no provision is made for any succession in the trust, nor is there anything to indicate that it was to continue beyond the pleasure of the trustee named in the will.</p> <p>If, whether active or passive, depends alone upon the character of the duties to be performed by the trustee, then we admit that the strict letter of the decisions makes this an active trust. Eor, since Barnett’s Appeal, 10 Wright 392, which marks the return to the earlier doctrine of trusts, all the authorities agree that the actual management of the trust estate imposes active duties. But we gather from these decisions that the duties must not only be active, but of such a character that they necessarily require for their performance a vesting of the legal estate in the trustee, and then the language of the donor must fairly impart a vesting of the legal estate in the trustee for the accomplishment of his purposes. It was evidently the intent of the testator to hand over to the daughter the entire estate whenever its management became a burden to Mr. Grove.</p> <p>The trust was active: Barnett’s Appeal, 10 Wright 392; Dodson v. Ball, 10 P. F. Smith 492; Earp’s Appeal, 25 Id. 119; Ashhurst’s Appeal, 27 Id. 464; Ash’s Appeal, 30 Id. 497; Williams’s Appeal, 2 Norris 377; Delbert’s Appeal, 2 Id. 462; Bentley v. Kauffman, 5 Id. 99.</p> <p>Again, no argument can be founded upon the fact that the trustee was permitted to resign. This was a mere personal privilege which the trustee possessed without the direction in the will. It must clearly appear that the testator intended the trust to terminate with the resignation of Mr. Grove, before such effect will be given to the direction with respect to resignation. No such intention appears anywhere. To impute such an intention would be to found it wholly upon conjecture.</p> <p>In the use of the words guardian or trustee, the testator intended to clothe Mr. Grove with the powers of a trustee. The trust would have been considered good, even if no trustee had been named. In such case, the Orphans’ Court would appoint one: Mann et al. v. Mullin, 3 Norris 297; County of Lawrence v. Leonard, 2 Id. 206.</p>

<p>A feigned issue should be framed between the opposing claimants of the money, so far as they are known to the court. It was error to make a garnishee a party to the issue, and subject him to the expenses and costs, when he made no claim to the fund and was in no default.</p>

<p>Error to the Court of Common Pleas of Franklin county: Of May Term 1879, No. 217.</p> <p>Scire facias sur mortgage, issued by David Caldwell, trustee of Ellen Barnhart, against Charles G. Klein.</p> <p>John Barnhart, the husband of Ellen Barnhart, the equitable plaintiff in this case, was the owner of a tract of land in Franklin county. On the 1st of October 1863, Barnhart executed and delivered to David Caldwell, as trustee for his wife, a mortgage upon the property, to secure the sum of $7000. This mortgage was duly recorded, on the 3d of November in the same year.</p> <p>In April 1868, David A. Harris purchased from Barnhart and wife fifty acres of this land, for the sum of $6250. Before concluding the bargain, Harris heard through some one of the existence of this mortgage, and he inquired of Barnhart concerning it. Barnhart told him there was such a mortgage, but it did not amount to anything, for the reason that it had never been recorded, and that even though it was recorded, it would be satisfied by his wife joining in the deed for the property. Harris, not satisfied with the statement of Barnhart, went to see the wife, in company with her husband. In the presence of Harris, Barnhart told his wife that Harris had heard of her mortgage and was afraid to buy the property on account of it, and that he had told him that it was not recorded. Mrs. Barnhart then said that it was not recorded, and Barnhart repeated what he had said to Harris about the effect of his wife joining in the deed, and Mrs. Barnhart said she had signed the deed. The business connected with the transfer of the property was to be done by an attorney living in Shippensburg, but since dead. He represented both parties in the transaction. Harris went to the attorney about the mortgage, told him what Barnhart and wife had said about the effect of the wife joining in the deed, and he expressed the same opinion. Thus assured, Harris paid the purchase-money, and accepted the deed without requiring the mortgage to be surrendered or satisfied. Harris did not discover that the mortgage was on record until 1873, when Mrs. Barnhart for the first time made a demand for it. He had previously, in June 1870, sold and conveyed the property to Charles G. Klein, the defendant, by deed of general warranty.</p> <p>In 1876, the remainder of Barnhart’s land, which was subject to other encumbrance prior in lien to the wife’s mortgage, was sold by the sheriff. Of the purchase-money, $449.66 remained after paying the prior lien, and was appropriated to the mortgage of the wife. In April 1877, Mrs. Barnhart, through Caldwell, the trustee in the mortgage, sued out this scire facias on the same, and sought to enforce its payment out of the land conveyed to Harris, in 1868.</p> <p>At the trial, before Howe, P. J., the defendant submitted the following points:</p> <p>1. That if the jury believe from the evidence that Harris, upon paying the purchase-money to Barnhart, inquired of the plaintiff whether she had a mortgage upon the property, and was told by her that she had a mortgage, but that it was not recorded; and that her husband then said in her presence that even though such mortgage was recorded, the plaintiff by joining, with her husband in the deed of conveyance, satisfied the mortgage, and that the plaintiff assented thereto ; and that Harris, relying upon these statements of husband and wife, was induced thereby to pay the purchase-money and accept the deed, the plaintiff is estopped from now setting up said mortgage to the prejudice of said Harris or his grantee.</p> <p>2. That if the plaintiff understood and intended, at the execution of the deed to Harris, that her mortgage would by operation of said deed be extinguished as an encumbrance upon the land conveyed to Harris, and so stated to Harris before payment of purchase-money and before the acceptance of the deed by him, and such was the understanding of the parties to the deed at the time, then the mortgage was extinguished by the cancelling of the deed to this extent, and there can be no recovery as against the grantee of Harris thereon.</p> <p>The court refused these points and directed a verdict for the plaintiff, which was assigned for error.</p> <p>The coverture of Mrs. Barnhart in no way prevents an estoppel; we recognise the cases of Glidden v. Strupler, 2 P. F. Smith 400, Pettit v. Fretz, 9 Casey 118, and others to the same purpose. They very clearly assert the doctrine that an estoppel may not be set up against a married woman, where the effect would be to give validity to a sale of real estate not made by her in the only way appointed by the statute. Nor are we in conflict with the authority of Haffey v. Carey, 23 P. F. Smith 433; Moore v. Cornell, 18 Id. 323; Burd v. Bunting, 28 Id. 219, that the assignment of the wife’s mortgage, without the husband joining in the assignment, or without the acknowledgment required by the Act of 1848, is invalid.</p> <p>But the estoppel we contend for would not establish by indirection anything forbidden. We are not seeking to give validity to a conveyance of land or an assignment of the mortgage, and no such effect would follow the estoppel. What we would accomplish through the estoppel, would be the satisfaction of the mortgage; either this, or a gift of it to her husband, in whose hands the law would hold it to be satisfied. The distinction we think clear and unquestionable. Our purpose is to prevent the plaintiff from now asserting the existence of a fact, which she previously asserted did not exist, and thereby induced us to do what we otherwise would not have done.</p> <p>We do not understand that married women are entirely beyond the operation of an estoppel. We fully concede that the favor which the law shows them, prevents them from binding themselves indirectly by an estoppel arising from'their'acts or words, in matters where they have no capacity to contract. In such cases they are unquestionably safe. But where, as in this case, the contract was fully within their power, they can be concluded as readily as others. That such is the law in Pennsylvania clearly appears from the cases of McCullough v. Wilson, 9 Harris 436; Fulton v. Moore, 1 Casey 478; Couch v. Sutton, 1 Grant 115.</p> <p>If this were a case of attempted estoppel between parties sui juris, it would lack the essential elements. But we are dealing with the assertion of an estoppel against a feme covert. Without asserting that there is no such thing as an equitable estoppel by matter in pais against a married woman, we feel quite safe in saying, that there is none under the facts and circumstances of this case.</p> <p>Had Mrs. Barnhart made a formal assignment of this mortgage to Harris it would have been invalid, unless her husband joined, and it was evidenced by a separate acknowledgment: Bond v. Bunting, 28 P. F. Smith 210; Stoops v. Blackford, 3 Casey 213; Moore v. Cornell, 18 P. F. Smith 320; Haffey v. Carey, 23 Id. 431.</p> <p>A married woman has no capacity to contract for the sale of her land or to convey it, except in the precise statutory mode: Glidden v. Strupler, supra. That case has been followed in Dunham v. Wright, 3 P. F. Smith 167; Kirk v. Clark, 9 Id. 479; Colburn v. Kelly, 11 Id. 314 ; Graham v. Long, 15 Id. 383; Williams v. Baker, 21 Id. 476. And these cases hold that the receipt of the consideration by the feme covert does not validate the imperfeet conveyance, or give legal force to her contract.</p>

<p>Error to the Court of Quarter Sessions of Tioga county: Of May Term 1878, No. 36. .</p> <p>Indictment of Arnold B. Heine,_ for conspiracy to cheat and defraud his creditors. In 1876, Heine owned a store in Blossburg, which contained a quantity of goods. On the 17th of August these goods were assigned by Heine to Henry Weill, a young man who had been a clerk in his store. At this time Heine owed a large sum of money to Claflin & Co., of New York, and E. S. Jaffrey & Co., of the same city, for goods purchased of said firms. It was not disputed that about the time of the assignment, Heine owed about $24,000, and that his assets were only $4488. The Commonwealth alleged that this assignment was fraudulent, not a bona fide or absolute sale to Weill, but was intended to defraud Heine’s creditors. The questions passed upon by this court do not make it necessary to enter into the details of the alleged conspiracy. The defendant was convicted, and after judgment he took this writ and. made the following assignments of error:</p> <p>The court, Wilson, J., erred in admitting, as evidence, the testimony of Edward C. Holmes, who was offered by the Commonwealth to prove: That he had a conversation with Henry Weill, on or about the 12th of September 1876, at Blossburg, in relation to the previous transfer of the stock of goods of Heine to himself; that in that conversation Weill stated to the witness that at the time the transfer was made to him, he understood its purpose; that he paid nothing for the goods and did not expect to pay anything; that he received them without consideration, for the purpose of assisting Heine to keep them from his creditors; that the money stated in the bill of sale, was paid by Heine to Weill himself but a few moments before it was paid over by Weill to Heine in the presence of E. E. Smith, on the day the bill of sale was signed; that further, he had given two signatures to Heine on a blank piece of paper, Heine stating to him that he wanted them so that in case there was trouble in relation to the goods, instruments in writing might be filled out over them of a proper kind to conceal the true state of the transaction between Weill and Heine.</p> <p>This evidence offered for the purpose of showing that Weill, with whom it is alleged in the indictment that Heine, confederated to cheat and defraud the parties named in the indictment, understood the nature of the transaction and had previously agreed with Heine to assist him in this attempt to cheat and defraud said persons.</p> <p>The court erred in saying, inter alia, in the general charge: “If you believe the defendant guilty, you will bring him in guilty. Evidence has been produced showing this man’s good character previous to this time. If a man is guilty his previous good character has nothing to do with the case, but if you have reasonable doubts as to his guilt, then character steps in and aids in determining that doubt.”</p> <p>The court erred in ruling that the indictment was not defective inasmuch as it is against only one defendant, charging him with a. conspiracy with a person named and described therein; inasmuch as such co-conspirator, as indicated by the record, was not unknown to the grand inquest. The indictment should have been against both persons charged, and is therefore defective.</p> <p>:The indictment in the most general terms charges the defendant alone with conspiring with Weill to assign and transfer goods and merchandise with intent to cheat and defraud defendant’s creditors, without stating whose, or what goods, or where, or when they were- to be transferred and assigned, and erroneously charges a simple, naked conspiracy by one with another person known, but not joined as defendant, nor any excuse given for such non-joinder; nor statement that anything was ever done in pursuance of such conspiracy to injure or affect any one.</p> <p>There cannot be a conviction for a confederation or agreement to do a thing, if neither party ever did anything in pursuance of the agreement, and no one was injured thereby. Could there be any legal conviction ? ' And if not, .is there any sufficient charge of an offence in the indictment in this case ? And should not the court have so charged the jury: Commonwealth v. Byerly, 2 Brewster 568 ; Regina v. Parker, 3 Ad. & E. 741; Rex v. King, 7 Ad. & E. 782; Hartman v. Commonwealth, 5 Barr 60; White v. The Queen, 18 Cox Cr. Cas. 318; 3 Russell on Crimes 152; Whart. Crim. Law, vol. 3, note to sect. 2305.</p> <p>The declarations of Weill were not evidence for any purpose. Not against Weill, because he was not being tried, and not against defendant, had they been made at the proper time, or during the time of the alleged conspiracy, as such declarations would not be evidence until the conspiracy was proved.</p> <p>Such declarations can never be evidence against anybody, except the one who makes them : 1 Greenl. on Ev. 157; 3 Id. 101; 1 Whart. Crim. Law, 5th ed., sects. 702-6; State v. Dean, 13 Ired. 63; State v. Thibeau, 30 Vern. 100; 2 Bishop Crim. Law, 192, sect. 191; Benford v. Sanner, 4 Wright 10 ; 2 Whart. Crim. Law 1205; Duncan v. State, 64 Mo. 262; Craig v. Craig, 5 Rawle 91; United States v. Craig, 4 W. C. C. R. 729; Tompkins v. Saltmarsh, 14 S. & R. 280-1.</p> <p>Every indictment shall be deemed and adjudged sufficient and good in law, which charges the crime substantially in the language of the Act of Assembly prohibiting the crime: sect. 12 of Cr. Proc., Purd. Dig., p. 377; Com. v. Eberle et al., 3 S. & R. 9; Collins v. Com., 3 Id. 220; Com. v. Gillespie, 7 Id. 479; Com. v. McKisson, 8 Id. 420; Carey v. Com., 4 Barr 210; Rhoads v. Com., 3 Harris 277; Hazen v. Com., 11 Id. 355; Twitchell et al. v. Com., 9 Barr 211.</p> <p>In conspiracy the thing intended need not be accomplished; but the bare combination constitutes the crime: 2 Bish. Cr. Law, s. 192. The indictment must always charge the crime against more persons than one, because one cannot conspire alone, yet there need not necessarily be more than a single person made defendant.</p> <p>In a charge of conspiracy, it seems no more necessary to specify names of the defendant’s coadjutors than in an indictment for an assault and battery, to name others besides the accused who were concerned in the trespass, if the fact were really so: 2 Bishop’s Crim. Procedure, sect. 225; People v. Mather, 4 Wendell 265-6.</p> <p>The offer to show the declarations of Weill, was made to show his knowledge of the purpose Heine had in view, in proposing to transfer his goods to Weill, and if the purpose was a criminal one, that he assented to it, and not for the purpose of having any bearing upon the question of Heine’s guilty intent.</p>

<p>Error to the Court of Common Pleas of Tioga county; Of May Term 1879, No. 59.</p> <p>Trespass vi et armis, &c., by Reynolds Sixbee and Hannah, his wife, for the use of said Hannah, against Stephen Bowen, sheriff, and B. R. Bailey, his deputy, to recover the value of two cows, a mare, and two colts, sold by the defendants at public sale as the property of Reynolds Sixbee upon a judgment against him.</p> <p>Hannah Sixbee, the wife of Reynolds Sixbee, inherited a one-half interest in a grist-mill from her father. She sold this interest to one Bennett, and the money arising from this sale was paid for a farm, which she took possession of in the year 1860. Her husband did not contribute to the purchase of this farm, and had no interest in it; his wife conducting the business- of the farm by herself, and her husband acting as her agent. In the year 1860 her husband and her brother, William Daggett, were the owners jointly of some personal property, which was sold by the sheriff upon a judgment against them, and bid in by one Royal Rose, who sold the same thereafter to Hannah Sixbee, the plaintiff in interest in this ease, for the sum of $90, and in about a year after she made the purchase of Rose, she paid him $40 and gave her note for the balance of the $90. At the time she made this purchase her husband was insolvent, and she was the owner of the farm, and occupying and using the land as her own. The property which she bought from Royal Rose was kept upon her land, and consisted of one brown mare, one cow, five sheep, one yoke of stags and one wagon. They were purchased by Hannah Sixbee, to be used in •tilling her farm. The purchase-money came from a sale of the increase of the property she bought of Rose, and from hemlock bark which was cut and peeled from timber standing upon her land. When the cows, mare and colts were sold by the sheriff, he was notified that they were the property of Mrs. Sixbee.. She alleged that they were born on her land, and raised out of the animals she had bought of Rose, and which she had kept for many years; and that she had made the purchase of Rose upon the credit of her separate estate.</p> <p>At the trial the plaintiffs submitted the following points, which the court refused:</p> <p>• 1. That to make valid the purchase of a married woman upon her own credit, it is not necessary that she should give such security as the law would regard as valid, but' that any security is sufficient if the purchaser is satisfied therewith.</p> <p>2. That if the jury believe that Hannah Sixbee was the owner of considerable estate in her own right, independent of her husband at the time of the purchase of this property, and purchased it on the credit of her separate estate, then she is entitled to recover the amount she paid therefor, together with interest from the time of the sale.</p> <p>3. That if she paid a part of the purchase-money by money raised by the sale of bark taken from her land; and had a farm of her own and raised cattle and colts upon her land, and a part of the money she paid for this property came from the sale of these cattle, then the money was not her husband’s, but her own; and she is entitled to recover.</p> <p>In the general charge the court, inter alia, said :</p> <p>“ If we are correct in this construction it would follow that the purchases in this case were not upon the credit of the separate property of this married woman, nor was the price paid from any devise or gift made to her before or after marriage. No part of her father’s estate came into it. The articles that were turned over to her by Rose, and the money raised from them, paid off her note to him and she retained the balance. * * *</p> <p>“ No employment of the separate property of the married woman having been made in the.purchase, and the articles not having been purchased for the preservation or operation of her separate estate, or by pledge or mortgage upon it, she acquired no title. It was a purchase upon her personal credit and that of her husband. We hold therefore upon his credit, and the title as to his creditors vested in him and not in his wife.”</p> <p>The court then directed a verdict for defendants. This action, the refusal of the above points, and the foregoing portions of the charge were assigned for error.</p> <p>The animals were sold to Mrs. Sixbee on the credit of her separate property, and if there was a shadow of doubt upon that subject, that question should have been submitted to a jury to determine: Seeds v. Kahler, 26 P. F. Smith 267. It is well settled that when the wife has a separate estate and she buys property on the credit of that separate estate, she may hold it against the creditors of her husband. It is not necessary that she shall have paid for it at the time of her purchase. She is not precluded from buying upon credit, provided it be upon the credit of her separate estate; Husband on Married Women 93; Wieman v. Anderson, 6 Wright 311; Conrad v. Shomo, 8 Id. 193; Rush v. Vought, 5 P. F. Smith 438 ; Lippincott et ux. v. Hopkins, 7 Id. 328 ; Brown v. Pendleton, 10 Id. 419; Lippincott v. Leeds, 27 Id. 420.</p> <p>If property is purchased on the personal credit of the wife, as to the husband’s creditors, it is a purchase for him, and there can be a purchase on the credit of her separate estate only when such estate is legally pledged to the payment of the purchase-price of the property bought.</p>

<p>1. By four separate deeds B. granted to O. for ninety-nine years, two tenth parts of the oil and mineral rights, saving and excepting lead ore, in certain land: to D. three tenths, to E. two tenths, and to E. three tenths. There was no other reservation or exception save the lead ore. There was also an express grant of the right to enter upon said premises and bore for oil, free right of ingress and egress, the right to erect derricks and other necessary structures, and to use the timber growing on the land for fuel and building purposes. Held, affirming the court below, that under these four deeds the grantees were tenants in common, with the exclusive right to all the oil on the land for the term of ninety-nine years; that under the terms of said deeds there was an express grant of exclusive.occupation of so much of the land as was necessary for the enjoyment of the thing granted ; and that the grantees had the right to divide the land into small tracts' and lease the same, with the right to the lessees to enter upon such tracts for the purpose of taking the oil therefrom.</p> <p>2. In ejectment for the land by A., the sheriff returned the writ as “served” upon the defendants, and the latter pleaded “not guilty,” but at the trial proved that what they possessed they rightfully possessed under the grant, and as to the residue disproved possession. Held, that the prima facies of "the sheriff’s return was thus met and rebutted; that the plaintiff’s claim was for the whole, and defendants had a right to a general verdict.</p> <p>3. Per Shakswood, C. J. The verdict and judgment did not establish title to the whole surface. It is always competent to establish by parol evidence, where it does not contradict the record, what the extent of the claim was upon which there has been a recovery.</p>

<p>Certiorari to the Court of Common Pleas of Sullivan county: Of May Term 1879, No. 90.</p> <p>Appeal of John Utz, sheriff of Sullivan County, from an order of the Court of Common Pleas of said county, ordering him to pay into court the proceeds of the sale of the real estate of John Osier, which said sheriff had distributed.</p> <p>On May 27th 1878, W. T. Davies hela a judgment against Osier, entered in the Court of Common Pleas of Sullivan county, for $292.37, with interest from October 9th 1877, and costs. This judgment was a lien upon real estate of the value of $1500. Franklin township held a judgment, entered December 22d 1874, which had been marked satisfied. Of this judgment Davies had no knowledge. Previous to the sale he examined the judgment docket and found no unsatisfied liens prior to his own. The sale took place May 27th 1878, Mr. Davies bidding only enough to cover his judgment. On May 22d 1878, the prothonotary had made out a certified statement of liens for L. M. Bowman, the plaintiff in the judgment, on which the land was subsequently sold, whereby it was shown that the judgment of W. T. Davies was the first, and that of N. C. Johnson, the second lien. This statement the sheriff had seen before the sale. The purchaser paid his bid, and the sheriff having examined the judgment docket, and finding that the judgment of Mr. Davies was a first lien, paid him the amount of it from the proceeds of the sale, and returned his writ accordingly. Afterwards the prothonotary, who it was alleged had marked the judgment of Franklin township “satisfied” by mistake, erased the word satisfied. July 2d 1878, Franklin township, by its attorney, made an affidavit alleging that the money of right belonged to them, and July 9th 1878, obtained a rule on the sheriff to pay the money into court. This rule was served August 12th, which was the first notice the sheriff had of any claim made by Franklin township to the proceeds of the sale. This rule was afterwards made absolute, by the court, Ingham, P. J., and from this order the sheriff took this appeal.</p> <p>By the record in this case the money had been paid out by the sheriff, prior to the application for the rule — the money was not -in his possession. Therefore, the remedy of any party aggrieved was by an action for wrongfully paying out the money; not by this summary proceeding for contempt. ' The sheriff is not bound to go beyond the judgment docket in making distribution: Mann’s Appeal, 1 Barr 24; 1 T. & H. Pract., part 2, p. 627.</p> <p>The parties have a complete remedy against the prothonotary or sheriff. The latter could only find relief by taking this appeal. While the Act of April 20th 1846, Pamph. L. 411, Purd. Dig. 655, contemplates the payment of liens for the benefit of the purchaser, it requires the purchaser to bring a statement of the liens to the sheriff. The sheriff did not commit a blunder. If there was one committed it was by the prothonotary in marking the judgment satisfied. This case is analogous to Mann’s Appeal, 1 Barr 24. It is not contradicting the record to show its actual state at the time when the rights of parties attached.</p> <p>This appeal is onlv from an interlocutory order.</p> <p>[Sharswood, C. J. — “ There is no appeal; it is a certiorari, and the record having been brought up thereby, we can review the same. The question is, can the sheriff be attached?”]</p> <p>When the sheriff pays out money without invoking the aid of the court or the Act of 1846, he does so at his own risk, and the money is in his hands by construction of law. When a creditor sees his judgment properly entered his responsibility c.eases: Coyne v. Souther, 11 P. F. Smith 458. The record cannot be impeached by parol.</p> <p>The sheriff did not ask the prothonotarv for a list of the liens, he did not even ask him which judgment was entitled to the money, but paid it out on his own responsibility — doing this it was at his own risk, and he is liable for the consequences: McDonald v. Todd, 1 Grant 18; Williams’s Appeal, 9 Barr 267; Mather v. McMichael, 1 Harris 303.</p>

Appeals from the Court of Common Pleas of Lycoming county: Of May Term 1879, Nos. 214 and 215. Appeals of the City National Bank of Williamsport, and the York County National Bank, from the decree of the court in the distribution of the proceeds of the sheriff’s sale of the real estate of Joseph H. Wonderly and Ozias Potter, deceased, in the hands of Albert T. Nichols, his administrator.

<p>Appeal from the Court of Common Pleas of Montgomery county : Of January Term 1877, No. 169. In Equity. Certified from the Eastern District.</p> <p>Appeal of Walter Cresson from the decree of the court confirming the report of the master in certain proceedings for a partnership account, wherein Ann R>. Cresson, administratrix of the estate of William Cresson, deceased, filed a bill in equity against’ said Walter Cresson.</p> <p>Ann R. Cresson filed a bill in equity, which set forth that from 1850 to 1865, Walter Cresson, and the said William Cresson, had been copartners in the saw-manufacturing business in Conshohocken. That the said William, though blind, yet rendered efficient personal services therein; that the books and papers were in the possession and control of Walter, who received and appropriated all the funds of the business; that the firm name was Walter Cresson; that in 1865 the saw-manufacturing business was discontinued, and the factory and certain dwelling-houses sold for $24,000; after-wards other real estate was sold for $8750, and certain machinery for about $2000, all of which belonged to the two partners, and all of which moneys were received by the said Walter Cresson in various payments, some as late as the year 1873.</p> <p>That in the year 1867, the said partners commenced the jewelry business in Philadelphia, and invested therein the sum of $12,000 of the funds of the partnership, and carried on the same in like manner as the former business, until the death of William Cresson. That the said Walter Cresson had the management of all the assets, sales, receipts and moneys of the said partnership during the whole time of its existence, and had never accounted therefor, either in the lifetime of the said William Cresson, or to his administratrix, since his death, and praying for an account of'said partnership and a decree directing him to pay the plaintiff whatever should, on such account, be found due by him.</p> <p>This bill was filed Nov. 16th 1874. On the 14th of January 1875, the defendant pleaded the Statute of Limitations to so much of the bill as sought to compel him to account for the dealings of the partnership in the saw manufacturing business under the firm of Walter Cresson, and of the disposition of the $2000, or thereabouts, received for the sale of the machinery, and of so much of the $24,000, the consideration for the sale of the real estate sold in 1865, as were not a portion of the mortgage of $12,000 given for part of the purchase-money.</p> <p>To the remainder of said bill defendant answered that in October 1867, he entered into copartnership with his brother in the jewelry business. That they invested therein $12,000; not, however, of the funds of said partnership, but of certain real estate, stocks and bonds of which they were joint owners, and all of which stood in his name, a detailed account of which was given. That in 1865 he sold certain machinery to Disston for about $2000, and certain real estate for $24,000, of which $6000 was cash, $6000 payable in one year, and the balance, $12,000, payable after a term of years, and secured by mortgage on the premises. These moneys were by him invested in stocks and bonds, some of which were again sold, and debts of the partners paid.</p> <p>That in 1867 he purchased the stock in trade of the jewelry business of one Fries, assigning to him the $12,000 mortgage belonging to his brother and himself, and thenceforth entered into this business under the firm name of J. B. Powell & Co. at first, but afterwards as Walter Cresson. That as William Cresson was blind, and could give no personal attention to the business, it was agreed that the defendant should receive-$30 per week for his services, and that the profits remaining after payment of expenses, including said payment to himself, should be equally divided; alleging that the said salary had been regularly drawn by him; that neither of the partners had ever drawn any sums on account of profits out of the jewelry business; that they had been obliged to contribute $7698.91 of their joint means to said business over the amount originally invested. That in 1871 he had sold some more real estate for $1000, paid May 15th 1871, and $2795.79, paid 26th August 1873, which with about $231.18 received for old material sold, were used in the payment of debts due by himself. and brother.</p> <p>He further admitted that he carried on said jewelry business after the death of his copartner up to the 6th of October 1874, when an appraisement was made of the remaining stock and fixtures by appraisers agreed upon. From the appraisement made, he claimed a deduction of $1500 on account of the lease, and that all the debts of the concern were not paid. He also claimed a credit for certain sums paid William Cresson in the years from 1868 to 1874 of $4284.77. He admitted that there had never been a settlement of the accounts of the saw-manufacturing business, and alleged that his brother knew that the whole assets of the concern had been invested in the stocks and bonds stated, and there was nothing to account for these except his share of those investments and the jewelry business, of which he agreed he was to account; that the books thereof had been submitted to an expert, and that the plaintiff was fully advised of the accounts of said business. He further answered that William Cresson was fully aware of all the acts done, investments made, and of the drawing by him, the said defendant, of $30 per week for his services, and approved of the same. That there was nothing due on the saw-manufacturing business. That plaintiff was entitled to half the stocks, bonds, &c., and to what would be the balance of the jewelry business in settlement after allowing his claim as aforesaid. That he believed there was nothing due on the accounts of interest or rents received.</p> <p>To. this a replication was filed February 19th 1875, and a master appointed, who in substance found the following facts: From the year 1850 to 1865 William Cresson and Walter Cresson were partners in the business of manufacturing saws in Conshohocken, under the firm name of Walter Cresson, in whose name also was held all the real estate belonging to the two brothers. He conducted the business and had sole charge of the same, William Cresson being blind. In 1865 this business ceased, and during that year and the year 1866 Walter Cresson received from the sale of the saw factory, &c., about $27,000, which he invested in various securities, among which -was a $12,000 mortgage. In October 1867, Walter Cresson purchased the stock in trade of a jewelry business of one Fries, and made use of the $12,000 mortgage to make the purchase. He and William then carried on the jewelry business under the name of Walter Cresson, until it was dissolved by the death of William, February 24th 1874. The capital originally invested in the jewelry business was $12,000. To this were added subsequently various sums, amounting in the aggregate to the sum of $7658.91 (from which $362.42 were afterwards withdrawn), which were derived from the sales of other real estate made in 1871, and from the sales of some of the stocks before mentioned. The whole capital then in the jewelry business was $19,296.49. Walter Cresson kept the books of the concern. Among the entries in these books the firm is charged each week with a sum of money as paid to Walter Cresson. Aggregating these sums they are found to amount to $30 each week. For a large part of the time the entries are exactly $30 each week. There is nothing on the books to show what these entries are meant for; but they appear just like all the other entries of expenses charged; they amount in all to $11,093.10. No settlement of any kind was ever made of the partnership. The books were never examined by William Cresson nor by any one on his behalf in his lifetime. There was no agreement between the partners so far as disclosed by the testimony.</p> <p>Walter Cresson claimed that $30 per week was the compensation or salary he was to receive for his services in conducting the business. He gave his whole attention to the business. William Cresson gave it no attention and rendered no services in it. Both William and Walter resided at Conshohocken; William visited the store but seldom, and when he did go there, it was for the purpose of drawing money. There existed implicit confidence on his part in Walter, and their relations were those of entire friendliness. After the death of William Cresson, the books and accounts of the firm were placed in the hands of an accountant.</p> <p>On the 6th October 1874, an appraisement of the stock and fixtures of' the jewelry business was made by certain persons chosen for that purpose. The value, thereof returned by these appraisers was $7725.61. They also recommended a reduction for the assumption of the lease by Walter of $1500, and this the plaintiff conceded. In 1867, Walter Cresson bought $7000 additional bonds of the Susquehanna Canal Company, with funds of the partners or on joint account, thus making $13,000 in all. After’ William’s death he sold $5000 of these bonds. These were sold at 73. The balance, to wit, $8000, he claimed to account for at the same price, by either paying or assuming upon himself certain debts due by the partners. At the time of the hearing these bonds were worth about 75. He has paid one debt of $1000, another of $800, and produced a release from a $4000 creditor discharging the estate of William Cresson.</p> <p>In reporting upon the allowance of $30 per week to Walter Cresson, for services, the master, inter alia, said :</p> <p>“ There is nothing here which refers to the terms or conditions on which the business was carried on, or the interests which the partners had therein. To be responsive to the bill the answer must reply to something specifically alleged or charged. In this case the first we know of the terms of the saw-manufacturing copartnership is the admission of the defendant, to wit, that the partners there were equal. It will not do for the defendant by an admission of a fact, or by making an allegation to place himself in the position he might occupy had the bill contained an assertion of that fact or made that allegation. The allegation of the bill that the jewelry business was carried on in like manner as the saw-manufacturing business did not refer to the terms of the. copartnership, or to the respective interest therein, but to the partnership itself, and the answer setting up a compensation to Walter Cresson was not responsive, and cannot be received. Nor is the answer responsive as showing an account or appropriation of the assets of the firm to the extent of $30 per week. The bill asks for an account, but an answer showing an appropriation of the firm assets to the payment of a salary to one member of the firm is not an account of the copartnership.</p> <p>“ But it is said that as the law, in the absence of an agreement of partnership, implies that the partners are equal, an answer denying this equality and stating the terms of the partnership is responsive to the bill. But this argument loses sight of the law under which the answer may, in certain cases, be evidence. As before remarked, in order to be evidence the answer -must be responsive to a fact alleged or allegation made in the bill. An answer to an implication which the law raises would not be a reply to any fact or allegation in the bill.” The master therefore excluded the charge for salary.</p> <p>Exceptions were filed to this report and after argument, the court, Ross, P. J., in ruling upon these exceptions, in an opinion, inter alia, said:</p> <p>. “ The next question which presents itself is of the greatest moment to the contending parties. It involves the claim of the defendant to extra compensation, at the rate of $30 per week, during the continuance of the partnership in the jewelry business. It is true beyond all question, that each partner is bound to give his services to the firm without extra compensation, unless there be an express agreement to pay him for his services. This is well settled by authority: Story on Partnership, § 182. This being true, the next question is whether such an agreement existed in this copartnership. To determine this, we must ascertain the terms upon which this firm was established. There were no written articles. All the stipulations and agreements, therefore, are to be grathered from the evidence.</p> <p>“ It is earnestly contended that the fact is proved by the answer, which avers that it was understood and agreed that $30 was to be allowed to defendant as extra compensation per week. It is insisted that the answer is responsive to the bill, and that being so it has the weight of two witnesses. To sustain this position, Eaton’s Appeal, 16 P. F. Smith 483, is cited. This case was properly ruled upon the pleadings, and the point decided is fully sustained by the English and American cases; and I feel bound to follow it. It is due to the learned and accurate master to say, that Eaton’s Appeal was cited to him ; and I am without the aid of his views and analysis. Yet acting with the best light I can derive from the authorities, I am reluctantly constrained to receive the answer of the defendant .as responsive to the bill in this particular. I agree with the conclusions of the master as to amounts. I think the account he has stated equitable and just between the parties and most merciful to the defendant, whose varying attitudes are not suggestive of the highest rectitude in his dealings with his brother’s widow. But it is not for this court to disregard the rulings of the court of last resort; and after a careful and even anxious effort to discriminate this case from Eaton’s Appeal and the other cases cited by it or lying in its track, I have failed to be successful.</p> <p>“ To determine the question it is necessary to analyze the averments in the bill. The first parargraph avers, that the defendant and plaintiff’s intestate wer.e associated together as ‘partners in business’ for many years, until the death of the latter, on the 14th of February 1874. The second avers, ‘ that the said partners from about the year 1850, until the year 1865, carried on the business of manufacturing saws in the borough of Conshohocken.’ The third alleges, that the decedent was blind, ‘but nevertheless took an active part in the said partnership business, and was able to render and did render, by his skill and judgment therein, efficient personal services,’ &c. The sixth paragraph avers, ‘ that in the year 1867, the parties commenced the jewelry business in the city of Philadelphia, investing therein $12,000 of the funds of the said partnership, and carried the same on in like manner as the said former business, till the decease of the said William Cresson, as aforesaid.’</p> <p>“ In paragraph first of plaintiff’s answer, which seems to apply to the first six paragraphs of plaintiff’s bill, it is averred: ‘We then agreed'to enter into a partnership for carrying on said business (jewelry), at first as J. B. Powell & Co., and afterwards under the firm name of Walter Cresson. As William was blind, and could not give any personal attention to the business, it was agreed that I should receive for my services $30 per week, and that the profits remaining after payment of all expenses, including the said payment to myself, should be equally divided. Such salary has been regularly drawn by me.’ In the seventh paragraph of the answer it is further averred: ‘ He was also aware that I was drawing $30 per week, as compensation for my services as manager of the jewelry business, in addition to my share of the profits, and approved of my so doing.’</p> <p>“ I have said that the first of the answers is responsive; a partnership is averred. It is averred to have been carried on in like manner as a former business, and it was competent for the defendant to state any difference, and if so, what that difference was.</p> <p>“ The rule laid down in Eaton’s Appeal and elaborated in the opinion of Mr. Justice Sharswood, is simply that ‘ whatever constitutes in truth a part of the facts stated in the bill, the defendant has a right and is indeed bound to set out.’ It is equally true, however, as stated by the learned judge in this connection: ‘ But he cannot make himself a witness for himself generally and introduce other (independent ?) facts either in avoidance or defence. It is considered indeed as a test whether as a witness on examination he could be cross-examined as to the matter which he states in anticipation of his defence on a trial at law:’ Hoffman Ch. Rep. 185. Now whether this rule be unwise or wise (I refer to this testing criterion) it is the test adopted by our court of last resort, and we are bound to follow it; after all, the doctrine of stare decisis is the only safe rule for courts, especially those of inferior jurisdiction. But before adopting this as the controlling test, I have patiently examined the authorities, and I think the rule is sustained by unquestioned authority, though so broad an application of it has never been made until Eaton’s Appeal in this state. Its first trace appears in Amb. 589. In 7 Ves. 404, Ld. Eldon ruled what was not responsive, and in so doing declared what would be so considered. The samé thing is true in Thompson v. Lambe, 7 Ves. 587, in which the first case is cited and the same doctrine declared. In 19 Vesey 582, the same doctrine is declared, where the answer was held to be only responsive in part, and the residue being rejected as in confession and avoidance. This is a case of great hardship to the defendant, but Sir William Grant, the Master of the Rolls, draws the line with a steady hand. Other English and American cases might be cited, but they are fully quoted in the principal case (Eaton’s Appeal).</p> <p>“ The first trace of this reasoning in our own reports I find in Commonwealth v. Cullen, 1 Harris 143, citing 9 Cranch 160; Clark’s Ex’rs v. Ramsdyk, 2 Johnson’s Ch. Rep. 90; Hart v. Ten Eyck. It next appears in Eberly v. Groff, 9 Harris 256, citing, in addition, Story’s Equity Pr., sect. 849, a; 2 Dan’l. Ch. Pr. 10, 19 ; 1 Howard’s Sup. Ct. Rep. 134. This, case is badly reported, but it seems from the opinion'of the court that the answer was in direct response to the bill. Pusey •v. Wright et ah, 7 Casey 394, is a strong case, fairly sustaining the ruling and test adopted by Eaton’s Appeal. The pleadings in the case are, when carefully read, excellent exhibitions of when an answer may be deemed responsive to the bill. Following the ruling of Chief Justice Parker in Bellows v. Stone, 18 N. H. 465, adopted in Eaton’s Appeal, the late Chief Justice Thompson declares: “ If a contract be set forth and the defendant be called upon to answer it, a denial that it exists, modo et forma, would not be good according to chancery practice; for this is subject to the implication that it existed in some other form. To avoid this, the defendant must state how it existed, and wherein it had no existence. This would be a good traverse:’ 2 Dan’l Ch. Pr. 259; 3 Greenleaf on Ev., sect. 285.</p> <p>“ Apply the law thus hastily reviewed, for I have not paused to analyze in this opinion many of the cases I have either cited or examined in its preparation, and the conclusion is inevitable. There is an averment of a partnership carried on as the saw-manufacturing business. A simple denial of this would not be a sufficient answer. The defendant must state how it was carried on; how it differed from the former partnership. He must state how it existed and wherein it had no existence. This he does, and the answer is therefore responsive.</p> <p>“ Again, suppose a partnership simply had been averred in the bill: clearly it would be competent for the defendant to admit it, give its terms, whether it was general or limited, when formed, and what were its conditions, for how long it was to continue, and the arrangements for its dissolution and settlement. Under the authorities this cannot, I think be doubted; and if the test as to cross-examination be adopted, it cannot be successfully questioned. Certainly the common-law rule as to what is a proper cross-examination would admit all this, after the existence of a partnership had been established by a witness in chief.</p> <p>“ The answer as to the extra compensation is therefore ruled to be responsive, but this is not decisive of this branch of the case, for the answer upon this point is guilty of duplicity.</p> <p>“ In paragraph first of the answer, an agreement as part of the original contract of compensation is averred. This, as has been seen, is responsive, because part of the contract. But in paragraph seven of the answer, it is alleged that the decedent ‘ was also aware that I was drawing $80 per week as compensation for my services as manager in the jewelry business, in addition to my share of the profits, and approved of my doing so.’ This is a mere averment of a subsequent license, and not being part of the original contract but something subsequently alleged in avoidance of liability, is not responsive. Now- which is true Y If the former the answer must prevail. If the latter the master was right. Upon the proof as it stands, a chancellor cannot say. An answer possessing the weight which the practice in the equitable forum gives it is to be strictly construed. Where conflicting, contradictory, or evasive, it loses its force. In the last case upon the subject, Smith v. Spencer, New-bold’s Appeal, 2 Weekly Notes of Cases 472, it was ruled ‘ that where a party was permitted to testify, and does testify in compliance with his answer, it will not do to hold that his testimony shall be disregarded and his answer stand wholly unimpeached.’</p> <p>“ It would seem to be equally true that where a party is not permitted to testify as in this case, and his' answer conflicts, so that one statement of facts is responsive, and another representation of the same facts contradicts it and is not responsive, the answer so far as it is contradictory ought not to prevail with the force of two witnesses. The case is anomalous ; and I have determined to refer the case again to the master to determine which of the conflicting statements is the truth.”</p> <p>The master filed a subsequent report, and concluded, saying: “ I cannot find that there was any agreement between the partners by which the compensation claimed could be established; nor can I find that any license was ever given by William Cresson authorizing the defendant to draw the money claimed.”</p> <p>The material facts on which the master based these conclusions will be found in the opinion of this court. The court then confirmed both the original and supplemental report, and made a decree accordingly. From this decree defendant took this appeal, and, inter alia, alleged that the court erred:</p> <p>4. In overruling the plea of the Statute of Limitations to all claims for interest collected by defendant at a period more than six years before filing of bill.</p> <p>8. In confirming so much of the master’s report as surcharged the defendant with $11,093.10, drawn out by him as compensation for carrying on the jewelry husiness, at the rate of $30 per week, from its commencement until its ending by the death of William Cresson.</p> <p>9. In deciding that the answer was conflicting in its statement of the terms of the partnership.</p> <p>Did not the answers directly respond to the averments of the bill? We do not contend that matter set up by way of confession and avoidance, can be held responsive; but simply that which is necessary to be stated, in full reply to what has been charged. It is the duty of the defendant, under the equity rules, to answer, not by a simple yes or no, but fully. The bill charged that the jewellery business was carried on “in a similar manner” to that of the saw-manufacturing, which had been conducted upon the terms of an equal division of the receipts. This was an averment as to the terms of the new partnership, and compelled the appellant to set up what they really were. If he had been silent, he would have admitted that the agreement was correctly averred in the bill. The law implies, from the fact of a contract to enter into a partnership, that there was an agreement that nothing should be received by either partner, as compensation for his services. In averring that a partnership was entered into, the complainant averred all that was therein implied, and it was the appellant’s duty to answer her, and to set up what the terms actually were: Hart v. Ten Eyck, 2 Johns. Ch. 89; Eberly v. Groff, 9 Harris 256; Schwarz v. Wendell, 1 Walker’s Ch. (Mich.) 267; Cooper v. Tappan, 9 Wisc. 361; Eaton’s Appeal, 16 P. F. Smith 490.</p> <p>The averment in the seventh section of the answer was simply that the main disbursements of the money had been made known to and approved of by William Cresson. Was it no response to the bill to say that $11,000 had been accounted for in this way ? Did it lessen the force of .the averment to say that this had been approved of? It appeared, by this response, that in addition to the contemporaneous agreement, it was known to the decedent until his death, that it was being acted upon, and that he approved of such contract, acting thereunder. There is not in this any inconsistency or contradiction of the former averment of a contemporaneous agreement.</p> <p>The matter was not affected by the testimony of Powell, taken under the second reference to the master.</p> <p>If, indeed, the bill had set forth the terms of the partnership, and had called upon the defendant to answer on that point, this case might fall within the scope of the decision in Eaton’s Appeal, 16 P. F. Smith 483. Rut nowhere in this bill are the terms of the original copartnership defined.</p> <p>The defendant yvas not called upon to answer as to the conditions of the partnership, nor as to salary, but simply to account. The manner of carrying on a business does not necessarily include the terms of copartnership. The business may be “carried on” in a manner inconsistent with the articles of copartnership, and in no wise disclosing them. In the absence of written articles of copartnership what, in such a case, is to limit the latitude of the defendant’s averments ? An affirmative fact, averred by the answer in avoidance of the averments in the bill, must be proved like any other affirmative averment in pleading: 2 Story’s Equity, sect. 1529; 2 Johns. Chan. 88-90; Vint v. Heirs of King, 2 Am. L. Reg. 747; Naglee’s Estate, 2 P. F. Smith 160; Pusey et al. v. Wright et al., 7 Casey 389.</p> <p>The presumption of the law is against the allowance of any salary for the services of a partner, and the averment of an exceptional agreement in this regard must be clearly established by evidence: Story on Partnership, sects. 182, 185; Parsons on Partnership 229. Assuming that the averment as to salary was responsive to the bill, it was contradicted and overthrown by the evidence.</p>

<p>Error to the Court of Common Pleas of Cumberland county: Of May Term 1879, No. 132.</p> <p>This was a case stated, wherein the Shiremanstown School Board were plaintiffs, and the Lower Allen Township School Board were defendants.</p> <p>The facts as stated were these : The borough of Shiremanstown was incorporated by a decree of court on November 17th 1874. Before its incorporation a portion of said borough laid in Lower Allen Township, and was included in the school district of that township. Under the provisions of the Act of April 11th 1862, a bill in equity was filed in August 1865 for a division of the property funds between the old and the new districts. This property consisted of school houses, cash in the treasury and a state appropriation of $358.92, due the district for the year ending June 1st 1875. The commissioners to make distribution filed their report August 23d 1875, and found, after valuing the real and personal property, and apportioning both, the sum of $607.82 to be due the old district by the new.' They did not however include in their report the $358.92. It was not returned to them as part of the funds to be distributed, and they had no knowledge of it. It was not in fact actually in the possession of the old district at that time, but was paid to it in September 1875. The Shiremanstown School Board paid to the Lower Allen Township School Board the money due them, less $72.50, the pro rata share of the $358.92, which they claimed to set off against the claim of the commissioners, The latter school board refused to allow the deduction, when this suit was brought.</p> <p>The court, Herman, P. J., was of the opinion that the new district was entitled to a pro rata share of said appropriation, and entered judgment for the plaintiff for such share. This action was assigned for error by the defendant, who took this writ.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 66.</p> <p>Case by Mary McEnery and children, the widow and children of John McEnery, deceased, against the Mansfield Coal and Coke Company, to recover damages under the Acts of April 15th 1851, Pamph. L. 674, and April 26th 1855, Pamph. L. 309, for the death of said John McEnery, which it was alleged was caused by the negligence of said defendants.</p> <p>At the trial it appeared that the deceased was employed by the company to drive a mule drawing coal cars. In the performance of this duty he daily crossed several times a bridge of defendants and while thus passing over it in 1877, it fell and the deceased was killed. The plaintiffs contended that the defendants were liable, because the accident was caused by defects arising from the original construction of the bridge. It was shown that it was built in 1874 by Henry Willard, a carpenter and experienced bridge-builder, who was employed by the company to construct the bridge, and the construction of which was under his supervision and control, and and that he was paid by the day. There was no evidence that the company did not exercise care in his selection,, neither was there any evidence to show that the company knew of the dangerous character of the bridge, or that the deceased had ever notified them that it was dangerous. On behalf of the plaintiffs, several witnesses testified that the bridge was unsafe and dangerous for several months prior to the accident; that it vibrated and shook whenever a wagon passed over it; that it swayed at one time at least two feet; the bridge swagged; it shook so that horses were afraid to cross it; it waved up and down the stream; caused the horses trouble to keep their feet. Plaintiffs also gave evidence to show that the foundations were not sufficiently strong and that the bridge was otherwise defectively constructed.</p> <p>For the defence it was offered to be shown that deceased was a fast and careless driver, which the court rejected.</p> <p>The following were among the points submitted by the plaintiffs with the answers of the court, Kirkpatrick, J.</p> <p>3d. If the jury believe, from the evidence in the cause that the death of John McEnery was the result of an imperfect or insufficient foundation for the erection of the structure on which the defendant company had located their railway, it is such negligence as would entitle the plaintiffs to recover in this action, unless the jury should find from the evidence that the deceased, by negligence, contributed to his own death.</p> <p>Ans. “ Affirmed.”</p> <p>5th. The damages which may be allowed in this action may be summed up, as the pecuniary value of the life of John McEnery to his family, including wages and all such service as a father could render of pecuniary value to the wife and children, whilst the jury are at liberty to take into consideration questions of health, liability to accident or death; they may also consider the opportunities of acquiring wealth or fortune by change of circumstances in life.</p> <p>Ans. “Affirmed.”</p> <p>Among the points submitted by the defendants were the following, which were refused:</p> <p>1st. The undisputed evidence in this case, showing that the bridge or trestle was built under the supervision and direction of Henry Willard, without the intervention of any officer of the company, and there being no evidence to show any want of care in the selection of said Willard, the plaintiffs cannot recover.</p> <p>14th. If the jury find that the bridge was constructed under the supervision and inspection of Willard, and that he was a competent bridge-builder, then even should they also find that the bridge shook and swayed in going over it, and that it became dangerous .to go upon it with loaded coal wagons, this would not entitle the plaintiffs to recover unless knowledge was brought home to the proper officers of the defendant company of this fact, and the company neglected to repair the same.</p> <p>The verdict was for plaintiffs for $50.00, and after judgment defendants took this writ and alleged that the court erred (9th assignment), in the exclusion of the above testimony (1st and 5th assignments), the affirmance of plaintiffs’ points, and (2d and 3d assignments), the refusal of defendants’ points.</p> <p>The court should have given definite instructions to the jury as to the true measure of damages, which is the pecuniary value of the deceased’s life: Pennsylvania Railroad v. Vandever, 12 Casey 304. By affirming the 5th point of plaintiffs the court laid down a rule which is boundless and at variance with the decisions of this court: Pennsylvania Railroad Co. v. Zebe, 9 Casey 330; Pennsylvania Railroad Co. v. Butler, 7 P. F. Smith 338; Pennsylvania Railroad Co. v. Keller, 17 Id. 308; Pennsylvania Railroad Co. v. Henderson, 1 Id. 323; Huntingdon & Broad Top Railroad Co. v. Decker, 3 Norris 419. If the company exercised ordinary care in the selection of a person to build the bridge they are not liable for any negligence on his part.</p> <p>The burden of proof was not on the company to show they had exercised due care and skill in the selection of the contractor or bridge-builder to erect the bridge, but it was obligatory upon the plaintiffs to show want of due care in the selection. This they might have done by showing the incompetence of the bridge-builder: Painter v. Pittsburgh, 10 Wright 221; Ardesco Oil Co. v. Gilson, 18 P. F. Smith 150; Butler v. Hunter, 7 Hurlst. & N. 826; Wonder v. Baltimore and Ohio Railroad Co., 32 Md. 418 Albro v. Agawam Canal Co., 6 Cushing 77; Gilman v. Eastern Railroad Co., 10 Allen 233; Wright v. New York Central Railroad Co. 25 N. Y. 562; Pittsburgh, Fort Wayne & Chicago Railway Co. v. Ruby, 38 Ind. 311; Feltham v. England, 2 Q. B. 33; Frazier v. Pennsylvania Railroad Co., 2 Wright 110. See also Sizer v. Syracuse, Binghampton & New York Railroad Co., 7 Lansing 67 ; Union Pacific Railway Co. v. Young, 8 Kans.,658; Harper v. Indianapolis & St. Louis Railroad Co., 47 Mo. 567.</p> <p>It was competent for the defence to show that the deceased was a fast and careless driver: Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 343.</p> <p>Whilst the accidents and possibilities of the future might lessen or depreciate the pecuniary estimate of the value of McEnery’s life, and were proper subjects for the consideration of the jury, the possibility and the probability of an active,, intelligent and industrious young man of twenty-seven years of age bettering his condition was not beyond the just range of inquiry. That we were right appears to us free from doubt. We fail to find a line or letter in any decision upon this. statute which debars this inquiry. If the “uncertainties”«of the future are to be weighed and “cast into the balance” against the widow and orphan, in the estimate of the pecuniary value of the deceased husband and father, surely the possibility of that improvement in condition of life which is the natural and ordinary progress of the industrious, energetic and frugal, may finally be considered in the estimate of the pecuniary value of human life: Pennsylvania Railroad Co. v. Butler, supra; Hanover Railroad Co. v. Coyle, 5 P. F. Smith 396; Pennsylvania Railroad Co. v. Dale, 26 Id. 49; Catawissa Railroad Co. v. Armstrong, 2 Id. 286.</p> <p>If the company had employed a “well-known and reputable bridge-builder,” and proved the fact, it would have raised the question which is now set up. But they did not. Willard was neither “a well-known” nor reputable bridge-builder — he made no pretence of the kind. There was no evidence of his knowledge or experience, or that he knew or pretended to know the weight of the coal and cars to be carried over the bridge. Willard was under the control of the superintendent of the company. The knowledge of the superintendent was the knowledge of the company.</p> <p>If the offer to prove that McEnery was a careless driver had been to prove his general reputation or the “ established habit” of the man, it would have had the grace of seeming like evidence, but the offer that in a single employment he had been a fast and careless driver, is certainly incompetent.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 211.</p> <p>Assumpsit by Thaddeus Hyatt, on a book-account and accepted draft, against Ross Johnston, impleaded with E. K. Chamberlin and S. Crawford.</p> <p>At the trial it appeared that Thaddeus Hyatt, who carried on business in the city of New York through an agent, Theodore Hyatt, sold and delivered, in the fall of 1872 and up to January 11th 1873, a bill of merchandise amounting to some $4000, to the firm of Crawford, Chamberlin & Co., of Chicago, of which Ross Johnston, the defendant, was then a member. On or about February 18th 1873, Crawford, Chamberlin & Co., who had already made some small payments on account, remitted to Hyatt $1000 in cash and two drafts, both dated February 18th 1873, and drawn on and accepted by themselves, for the balance. Hyatt received this remittance, and credited it on their account on February 21st, after charging them with the interest or discount on the drafts. One of these drafts, for some $1400, was not paid at maturity, and was thereupon duly protested. Subsequently Hyatt brought this suit, declaring both upon the draft and the book-account.</p> <p>About the time these drafts were accepted and remitted, Johnston withdrew from the firm of Crawford, Chamberlin & Co., and his former partners, Crawford and Chamberlin, having taken in a new partner, continued the business under’the same firm name. Johnston, who alone was served, pleaded payment, &c., claiming that the draft in suit was the acceptance of this new firm, and that the plaintiff received it as absolute payment. At the trial of the cause, Theodore Hyatt testified that they received the draft as the acceptance of their debtors, the old firm; and, although admitting that he was aware of the withdrawal of Johnston, denied having any intention of discharging him from his liability as a member of the old firm, or of receiving an acceptance of the new firm as absolute payment.</p> <p>The only evidence offered by the defendant in support of his plea of payment, were four letters, three of them dated respectively, March 1st, March 22d and April 1st 1873, from the plaintiff to Crawford, Chamberlin & Co., and the fourth dated March 26th 1873, from this firm to the plaintiff, in reply to his letter of March 22d, and another of March 18th, not in evidence.</p> <p>. The plaintiff objected to the admission of three of these letters, viz.: those of March 1st, March 22d and April 1st, contending that they referred to a different and subsequent transaction, and were wholly irrelevant. Their admission was the ground of the first and second specifications of error.</p> <p>The fourth letter, dated March 26th 1873, from the firm to the plaintiff, was admitted without objection. The material portions of these letters were as follows:</p> <p>“New York, March 1st 1873.</p> <p>Messrs. Crawford, Chamberlin & Co.,</p> <p>Gentlemen: Enclosed please find statement of account to date, for amount of which you will do me the favor to send check or draft, as you may elect, on the terms agreed upon by us. * * * Thaddeus Hyatt, per Theodore Hyatt.”</p> <p>“New York, March 22d 1873.</p> <p>Messrs. Crawford, Chamberlin & Co.,</p> <p>Gentlemen: * * * On the 18th inst., I mailed to you for acceptance and the endorsement of your Mr. Charles B. Brown, a sixty-day draft for amount due me, as per statement of 1st inst., which you will please have properly executed and returned by earliest mail, as I wish to use it at once.</p> <p>Thaddeus Hyatt, per Theodore Hyatt.”</p> <p>“ Chicago, March 26th 1873.</p> <p>T. Hyatt, Esq., New York City,</p> <p>Dear Sir: Your favors of the 18th and 22d insts., arrived in due time. We have not returned you the draft sent for endorsement, because of the dissolution of this firm, which took place on the 23d inst., the copartnership having expired by limitation on that day.</p> <p>Both Mr. Brown and Mr. Johnston, who comprise the Co., being wealthy men, insure to all creditors payment of paper at maturity, as well as guaranteeing the entire indebtedness of the concern. Neither of the above-named gentlemen desire to continue the business, and we are consequently, taking steps toward closing it up.</p> <p>We have on hand at this time quite a stock of your goods, * * * which we would be pleased to either return to you (at our expense for freight charges), also turn them over to the Younglove Company, or whoever you choose as your representatives in this city. The business is without doubt an exceedingly profitable one, and will well repay any persons who work it. This copartnership is not continued longer, simply because both our Messrs. Brown and Johnston have so much larger interests in other directions. * * *</p> <p>Crawford, Chamberlin & Co.”</p> <p>“New York, April 1st 1873.</p> <p>Messrs. Crawford, Chamberlin & Co.,</p> <p>Gentlemen: Your favor of 26th inst. is at hand, and I regret not receiving the draft accepted by you, as requested in my last.</p> <p>Enclosed you will please find statement of account to date, for amount of which I would like either check or sixty-day draft.</p> <p>In regard to the stock on hand that you refer to, I have to say that it was all settled for in your acceptances I now hold, and you are at liberty to dispose of it as you think best. * * *</p> <p>You will do me the favor to inform me by early mail how and when my account will be settled.</p> <p>Thaddeus Hyatt, per Theodore Hyatt.”</p> <p>The plaintiff submitted, inter alia, the following points, to which are appended the answers of the court, Collier, J.:</p> <p>2. That the burden of proving that the plaintiff took an acceptance of the new firm as absolute payment is on the defendant; and that the defendant has given no evidence from which the jury would be warranted in finding that the plaintiff' agreed to take the said acceptance as absolute payment.</p> <p>Ans. “ Refused.”</p> <p>3. If the second prayer is refused, then the court is requested; to charge that, even if the acceptance was made by the new firm, and the plaintiff knew that fact, yet, if the plaintiff took it on account of a pre-existing debt, and did not agree to take it.in absolute payment, the presumption of law is that the plaintiff took the draft only as conditional payment [and, as the said acceptance has been dishonored and remains unpaid, the plaintiff is entitled to recover].</p> <p>Ans. “Affirmed, except the part in brackets, which is refused.”</p> <p>Verdict for defendant, and after judgment plaintiff took this writ, alleging that the court erred in admitting the above letters, and in the answers to the foregoing points.</p> <p>The merchandise, for a balance of the price of which this suit was brought, was sold and delivered to Crawford, Chamberlin & Co., prior and up to January 11th 1873 ; and the draft in suit, dated February 18th 1873, was received by the plaintiff, credited on their account, and the account closed, on February 21st 1873.</p> <p>The court erred in admitting the letters of March 1st, 22d, and April 1st. The two former relate to a transaction wholly independent of and subsequent to the one in suit, and were clearly irrelevant. The drawers of the draft in suit, or the intention of the parties thereto, are in no way disclosed by these letters. While the letter of April 1st does contain an allusion to the acceptances of February 18th, this letter, taken in connection with that of March 26th, to which it is a reply, was no evidence that these acceptances were those of the new firm, or that the plaintiff had received them in absolute payment. In his use of the word “ settled,” Hyatt simply meant that the goods had been included in an account stated, which had been agreed to, and closed in the manner indicated: Houser v. Irvine, 3 W. & S. 345; Bevan v. Cullen, 7 Barr 281; Scott v. Strawn, 4 Norris 471; Parsons on Part. 284; Collyer on Part., 4th Am. ed., sect. 373, note 1; Lindley on Part., 646.</p> <p>The plaintiff admitted that he knew at the time of the dissolution of the original firm, by the withdrawal of Johnston and entry of Brown, and that the new firm assumed all the liabilities of the old. The old firm name was adopted by the new, and on February 18th 1873 the draft was accepted by Crawford, Chamberlin & Co. But plaintiff, on the trial, raised the question as to whether this acceptance was not by the old firm in liquidation. To remove all doubt on this point, we introduced the plaintiff’s letters of March 1st, March 22d and April 1st, addressed to Crawford, Chamberlin & Co., showing that business accounts were carried on between them at that time; that consequently these letters were addressed to the new firm, and that when in that of April 1st, plaintiff wrote to Crawford, Chamberlin & Co. that the stock to which they referred in theirs of 26th March, “was all settled for in your acceptances I now hold,” one of Avhich Avas that in suit, he showed beyond all controversy that it was the acceptance of his then correspondents, viz.: the new firm, and not that of the old firm in liquidation.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1878, No. 190.</p> <p>Scire facias sur municipal lien, issued by the City of Pittsburgh, against Robert McKnight and others, executors of Mrs. Elizabeth E. Denny, deceased, for the sum of $938.26, the assessment on certain property of defendant, fronting on Ridge Avenue, in the city of Pittsburgh, and which was levied for the payment of the cost of grading, paving and curbing said avenue.'</p> <p>At the trial of the case, the defendant claimed that she should not be compelled to pay the assessment, on the ground, that during the progress of the work, Johnson, the contractor, had purchased gravel from her, and that she had done hauling for him, for the work on the street, with the verbal understanding or agreement with him that he would pay her, or that she would be allowed a credit for the amount of such materials and work, on the assessments against her property. This agreement was.not put in writing, nor- was any notice of it given to the city, until after the assessment had been made. The plaintiff objected to evidence for the purpose of proving these facts being admitted, as being irrelevant in this case, and also as an attempt to set off against the .claim of the city, a debt owing to the defendant by a third person, not a party, to the action. The court, White, J., overruled the objections and admitted the testimony. The court also admitted, against the objections of the plaintiff, evidence on the part of the defendant, going to show that during the progress of the work, Johnson, the contractor, had assigned all his interest in the contract, and all money coming to him under it, to one M. A. Sanner, in order to obtain money to complete the contract, and that Sanner had afterwards assigned the same to W. W. Patrick, who, after the assignment to him, had advanced all the money to complete the work, and that Sanner had taken the assignment, subject to Johnson’s agreement with Mrs. Denny.</p> <p>The seventh point of the plaintiff, with the answer of the court, was as follows:</p> <p>That under the pleadings in this case, the jury cannot ascertain or determine the equities between the defendant and the contractor, or M. A. Sanner or' W. W. Patrick, who are not parties to this action, and their verdict must be for the whole amount of the claim of the city, without qualification or condition as to the distribution of the amount of the verdict.</p> <p>Ans. “ Refused, because all the parties named are in court, and have been fully heard in the trial; in fact, these questions were the real matters at issue in the trial.”</p> <p>In the general charge the court, inter alia, said:</p> <p>“ Where, as in this case, the city, the contractor and the party assessed, are in court and fully heard, we can do equity and justice to all. The city is entitled to a verdict and judgment for the amount of the lien, and the jury can find what amount of money coming to the contractor is due the defendant. The judgment will be satisfied by the defendant paying the difference; the city will credit the street account with the amount of' the verdict, and charge the contractor with the amount found by the jury against him. * * *</p> <p>“ But we have another party in court, claiming the money under an assignment from the contractor. The city is in court rather as a stakeholder of the money, or as an agent collecting the money for the party legally entitled to it. The city has no claim against the contractor, admits that the money is due him on the contract, and has no reason for paying it to one claimant, rather than the other. Even if the money were paid into the city treasury, the same controversy would arise, and would have to be settled as to which of these parties is entitled to the money. For I take it that after due notice from two parties claiming the fund, under assignment from the contractor, the city could not safely pay it to either claimant before their respective claims were judicially settled. It can be as well settled now; Mr. Patrick claims the fund as against Mrs. Denny, and is here to substantiate his claim by his counsel and witnesses, and has been fully heard. * * *</p> <p>“ But if you find from the evidence, that a portion of the money he (Patrick) claims was paid by him to Sanner, when he took the assignments from Sanner, and exceeds the amount coming to Mrs. Denny ; and if you further find, that Sanner made an agreement with Johnson that the bill of Mrs. Denny should be paid out of the money coming on the contract, and took the assignments expressly subject to such payment, then Mrs. Denny will have priority, and should be paid before Mr. Patrick'. In that event your verdict should be for the plaintiff for the amount o.f the assessment with interest and you should also find that Mrs. Denny is entitled to have the amount of her bill with interest, paid out of the moneys coming to Johnson or be credited on account of her assessments.”</p> <p>Under instructions the jury found the verdict “for the plaintiff in the sum of $1022.98, and further that M. A. Sanner, when he took the assignment from S. A. Johnson, expressly agreed that the bill of Mrs. Denny for gravel, stone, hauling, &e., on the street, should be credited on her assessment or paid out of the contract price and took the assignment expressly subject to that claim, and that more than the amount of her bill is included in the claim of W. W. Patrick for money paid by him to M. A. Sanner on the assignment made by Sanner to Patrick, and that the bill of Mrs. Denny, with interest thereon from the time the lien was filed in this case is $1188.27, for which she is entitled to credit on the assessment against her property on this street, the same to be a credit to the city of Pittsburgh on the contract of S. A., Johnson.”</p> <p>The court entered judgment on this verdict as rendered, when plaintiff took this writ and alleged that the court erred, inter alia, in admitting the above evidence, in refusing the foregoing point, and in charging as set forth above.</p> <p>The contractor is not a party to the record; nor was he the agent of the city to collect the assessments, nor authorized by it to allow credits on them, or interfere with them or their collection in any manner. Neither is he a substantial or equitable party to the action. He cannot claim the specific money collected- by the city on the assessments, or that they were collected for his benefit or use. They may be applied by the city to other purposes and the contractor may be paid from other funds in the possession of the Gity. He could not therefore assign or transfer the assessments but only his claims against the city. Neither he nor his assignees could have their rights determined in this action; any questions between the contractor and the city as to the amount due him on his contract can only be settled when he presents his claim against the city for payment, which is the proper time to settle all equities between him and the various assignees of his claim. Neither he nor his assignees can be made parties to the record here, and therefore will not be concluded by the judgment. In addition to this, if the equities between the contractor and his different assignees can be tried in this case, they can also be tried on each assessment along the street, and a different settlement of them made in each ease. Each property owner may, have a private agreement with the contractor as to his assessments, which, under the rulings in this case, would have to be considered by the jury. This cannot be done: Schenley v. Allegheny City, 12 Casey 41, 51, 61; Hutchinson v. Pittsburgh, 22 P. F. Smith 326; Dyer v. Barston, 50 Cal. R. 654; Himmelman v. Spanagel, 36 Id. 392.</p> <p>No reason has been assigned why the verdict and judgment should be disturbed in so far as relates to the amount due the city on its municipal claim; the judgment entered is for that amount and so stands now as the judgment of the court below. The finding of the jury that the defendant in error is entitled to credit on the amount of the judgment for so much money has not been acted upon in any way — does not form part of the judgment, but merely informs the conscience of the court as to the equities of the parties, and it is difficult to see how any writ of error will lie to this finding. It is the finding of a jury, after hearing all the parties and all they had to offer, that the defendants have an equity, and is probably notice-to the world of the existence of that equity. It is not a payment, not a set-off, not a defence- of any kind to the recovery of the judgment. The court may, or may not, hereafter deem the finding of the jury sufficient to satisfy its conscience on an application to have a credit allowed, and it is respectfully submitted that if the plaintiff in error is not satisfied with the finding, application should be made to the court below to strike it off.</p>

<p>1. The Act of January 6th 1864, which authorizes Councils of the City of Pittsburgh to improve the streets and assess the cost of improvements upon lot-owners, gives no specific property in the assessments to contractors, and in no sense does the statute make the city a stakeholder of unpaid assessments.</p> <p>2. Undecided, whether the city is legally bound to pay assignments of parts of money due a contractor who has done work for the city.</p> <p>3. A property holder has no set-off against the city’s claim for an assessment, and in a suit for such assessment by the city the equities between the property owner and the contractor cannot be adjusted. See City of Pittsburgh v. -McKnight et al., ante 202.</p>

<p>Error to the Court of Common Pleas of Dauphin county: Of May Term 1879, No. 219. Certified from the Middle District.</p> <p>Quo warranto by the Commonwealth, at the relation of II. P. Morley, to show by what authority A. P. Erb held and exercised the office of alderman of the Sixth ward of the city of Harrisburg.</p> <p>In his petition the relator averred that William O. McFadden was commissioned to serve as alderman in said ward for five years, from Nov. 7th 1873; that by the 26th sect, of the schedule of the constitution, and pursuant to the provisions of the Act of March 22d 1877, JPamph. L. 12, relative to the election of aldermen, &c., and “fixing the times for the expiration of their offices,” and which provides that on the third Tuesday of February of each year an electien shall be held for aldermen, in such cases only where the term of the commission of any alderman may expire on or before the first Monday of May following such election, no valid or legal election for alderman of said Sixth ward could be held until the third Tuesday of February 1879; that the person then elected would become qualified as the successor of said McFadden, pursuant to the provisions of the said act, on the first Monday of May succeeding such election, to wit: on Monday, the 5th of May 1879, to which time said McFadden is the only legal alderman of said ward, pursuant to his said commission, the Act of Assembly of March 22d 1877, and the said twenty-sixth section of the schedule of the constitution.</p> <p>That at the regular election for alderman for said ward, held on the 18th of Feb,, being the third Tuesday of Feb. 1879, relator was elected alderman for said ward, to succeed said McFadden, and having obtained the certificate of his said election, and filed his acceptance thereof as provided by law, he has received from the governor his commission as alderman of said ward, for the term of five years, to be computed from the said first Monday of May 1879, and has been duly qualified and given his official bond.</p> <p>Yet, notwithstanding the premises, the said Erb has for the time aforesaid exercised and still does exercise the franchises, privileges and office of alderman of the Sixth ward, claiming the right so to do, by reason of a pretended election to said office held on the third Tuesday of February 1878, at which time there was no vacancy in said office, and said pretended election of said Erb was “ absolutely void ” and conferred no authority, and said Erb usurps and unlawfully holds said office, &c.</p> <p>The respondent answered that the term of McFadden expired absolutely on the 7th of November 1878; that in pursuance of sect. 3, ■ art. 8, of the constitution, an election for a successor to said McFadden was held on the third Tuesday of February 1878, and that respondent was duly elected; that in accordance therewith he was commissioned by the governor for five years from November 7th 1878, and that he has been duly qualified and is in lawful possession of said office.</p> <p>The court granted a rule to show cause, which they afterwards made absolute, and awarded the quo warranto, Henderson, J., in an opinion adopting the ruling of Pearson, P. J., in Price v. Battes (MSS., Dauphin county.)</p> <p>The respondent demurred to the petition, and after joinder the court entered judgment of ouster against the respondent, and decreed that the relator was entitled to the office. The respondent took this writ, and alleged that the court erred in this action.</p> <p>February 1878 was the proper time to elect a successor to McFadden, and not February 1879. Erb having been elected at that time, his election was regular, and entitled him to enjoy the rights and privileges of said office: New Constitution, sect. 13, art. 3, sect. 3, art. 8, and sect. 26 of schedule; Act 22d March 1877, Pamph. L. 12, sect. 1; Brooke v. Commonwealth, 5 Norris 163.</p> <p>The constitution never intended to interfere with the tenure of aldermen in office at the time of its adoption, either by'extension or diminution of the same. It proposed to bring about the change from the old to the new order of things by subsequent legislation, which was provided in the Act of 1877.</p> <p>Two objects are apparent in the Act of 1877. The one was to designate the time for the terms of aldermen to begin, and as to that, it is distinctly provided that the terms of office of all aldermen shall “be computed from the first Monday of May succeeding the election.” The other object was to indicate and provide for the particular year for holding the election, having reference, in so doing, to the time of the expiration of the term of the commission of the alderman incumbent, and the time from which the commission of the one to be elected is to be computed; and the intention of the legislature as to this object is as clearly and plainly indicated as to the other.</p> <p>It is manifest that the act contemplates the election of an aider-man only in cases where the term of the alderman already in commission expires on or before the first Monday of May following the election of his successor, and when the latter can be commissioned from that date, without, of course, violating the provisions of the Acts of Assembly limiting a ward to one alderman. Under no other circumstances can an alderman be legally or validly elected.</p>

L. 86, Purd. Dig. 2074, and its supplement of May 3d 1878, Pamph.

<p>Appeals from the Orphans’ Court of Allegheny county: Of October and November Term 1879, Nos. 113 and 114.</p> <p>These were two appeals by Frederick Werner, administrator of the estate of William and Catharine Hilline, deceased, from the decree of the court surcharging appellant with the sum of $45 in each case.</p> <p>Appellant filed his final account, which set forth that he has distributed the entire estate to Anton Hilline, the father and heir-at-law of the deceased, but filed no vouchers to said account. The estate was small, consisting of about $150. It appeared that the deceased were minors, unmarried and without issue. Their father, by reason of his habits of intemperance, was imbecile, impaired in health, and possessed of no means. The deceased had been sick, for several days prior to their death, with malignant typhoid fever, and required constant care and attention. Mary Hopkins, a sister of deceased, had boarded and nursed them through their last illness, and had • prepared their bodies for interment. She presented her claim for these services to the administrator, prior to the alleged distribution to the heir, payment of which was refused on the ground that it was excessive. She then excepted to the account of the administrator, and the court sustained her exception, surcharging the accountant with the sum of $45, in each case, and costs. Werner then took this appeal.</p> <p>There was no contract with deceased to pay for services, and if there was it was. void, as they were minors and under the protection of their father, who was bound to furnish them maintenance: Reeves’s Domestic Relations 228; 1 Bl. Com. 446 ; Schouler’s Domestic Relations 322; Harlan’s Accounts, 5 Rawle 323. The amount received by the father was ample to pay the claim.</p> <p>The exceptant permitted appellant to pay the father the money, and is therefore estopped. The claim- is exhorbitant and unreasonable.</p> <p>The claim of appellee is based on a quantum meruit: Hertzog v. Hertzog, 5 Casey 465. The duty to pay arose out of the facts. The services were necessaries, and not upon a contract with either the deceased or the parent. The latter being unable to pay was discharged from his duty, and the claim is a proper one against the estate, and which the administrator should pay : Reeves’s Domestic Relations 287, 413, 465; Schouler’s Domestic Relations 322; Adams’s Equity, 5th ed., 287; Greenwell v. Greenwell, 5 Ves., Jr., 194, and cases cited in notes; Harlan’s Accounts, 5 Rawle 323; Dawes v. Howard et al., 4 Mass. 97; In re Petition of Charles Potts, 1 Ash. 340; Newport v. Cook, 2 Id. 332; Pennock’s Estate, 1 W. N. C. 196, 434; Hellerman’s Estate, 3 Id. 391.</p> <p>The Orphans’ Court will not dispense with the exhibition of proper vouchers for payments made: Verner’s Estate, 6 Watts 250; Romig’s Appeal, 3 Norris 235; Act of March 15th 1832, Pamph. L. 143, sect. 29, 1 Purd. Dig. 444, sect. 189.</p> <p>The administrator made the distribution at his own risk, and cannot complain of the surcharge: Moorhead’s Appeal, 8 Casey 297. The claim was reasonable and just.</p>

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 193.</p> <p>Assumpsit by Renshaw & Co., against Wesley Wilson and wife, for necessaries alleged to bave been sold to the wife for the use of herself and family.</p> <p>One of plaintiffs,-in their affidavit of claim, which was founded on a book account, alleged: “ That all the articles appearing in said account are necessaries, and the debt therefor was contracted for the support and maintenance of the family of said Wesley and Lydia M. Wilson, the articles having been ordered for family use; and deponent further says that, to the best of his knowledge and belief, every article appearing on said bill of -items was personally ordered and contracted for by the said Lydia M. Wilson, and he therefore claims that the said Lydia M. Wilson is justly liable, as well as her husband, to the said firm of John A. Renshaw & Co., for the payment of said debt.” *</p> <p>Wesley Wilson filed an affidavit of defence, wherein he averred “that all of said goods were sold to this deponent, and were charged to deponent on plaintiffs’ books, and that said plaintiffs rendered all their bills to this deponent, and never made any claim until this suit, that they were selling said goods on the credit of the said Lydia M. Wilson.”</p> <p>He further averred that he had been adjudicated a bankrupt and had been discharged from all his debts, including the one in suit, a copy of the certificate of which discharge was included in said affidavit of defence.</p> <p>The court made absolute a rule to show cause why judgment should not be entered for want of a sufficient affidavit of defence when defendants took this writ and assigned this action for error.</p> <p>—The goods were not purchased by the wife on her separate credit, out on the credit of the husband alone. The plaintiff recognised this fact by charging the goods to the husband alone, and sending him the bills therefor.</p> <p>The husband pleaded his discharge in bankruptcy in due form. This was conclusive against the right of the plaintiffs to recover a judgment and have execution against him. It follows therefore they cannot bring themselves within the purview of the Act of 1848, and can have no judgment against the wife.</p> <p>The bankrupt law was never intended to protect any one except the bankrupt himself.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November-Term 1879, No. 208.</p> <p>Case by John Eritsch and wife against the city of Allegheny, to recover damages for injuries sustained by the wife, in consequence of her horse taking fright at the carcass of a horse lying on one of the streets of said city.</p> <p>Erom the evidence produced by plaintiffs, it appeared that on the 13th of August 1878, while Mrs. Eritsch was driving along Madison avenue, in her milk wagon, to supply her customers with milk, her horse took fright at the carcass of a horse lying on said avenue, and running away, caused the injuries which Mrs. Fritsch received. It was in evidence that the dead horse had fallen on the street about twenty-four hours before the accident to Mrs. Eritsch, and that word had been sent to the board of health, mayor’s office and the fallmaster (an officer who is required to remove such carcasses), to notify them of this obstruction and nuisance, but that no attention was paid to the notification until several hours thereafter, when the dead animal was removed. Offensive and sickening odors had arisen from the carcass, and several horses had been frightened thereby, previous to the accident. The narr. did not allege notice to the authorities, but charged neglect of duty. At the conclusion of the plaintiffs’ testimony, the defendant moved for a nonsuit, which the court, Stowe, P. J., granted, and entered judgment for defendant. The court in banc subsequently refused to take off this nonsuit, when plaintiffs took this writ and assigned this action for error.</p> <p>The facts proven by the plaintiffs should have been submitted to the jury; and the court erred in entering the nonsuit. It cannot be determined by the court, as a matter of law, that a carcass lying on a public highway for a specified time, was or was not a nuisance: Johnson v. The Town of Haverhill, 35 N. H. 74. If the carcass remained on the public street, used for travel in the city of Allegheny, from one morning until the next morning, it was a nuisance per se, and the city was bound to know of its existence and continuance, and is responsible for any injury it caused — or resulting from the maintenance or neglect to remove the nuisance: Norristown v. Moyer, 17 P. F. Smith 355. It was not necessary that notice should have been given of the existence of the nuisance, it was the duty of the city to have known and removed it the first day of its existence: Norristown v. Moyer, supra; Winn and Wife v. City of Lowell, 1 Allen 179.</p> <p>When the obstruction is the act of a third party, the city is not liable until after notice, actual or constructive, and the expiration of a reasonable time thereafter for its removal. There was no actual notice in this case. The street commissioner is the officer who has the general charge of streets in all cities. There was no notice to him. It is true that notice was left at the fallmaster’s house, with his son, about 6 o’clock on the evening of the 12th. The fallmaster is an officer whose duty it is to remove carcasses prejudicial to the public health. The owner Las twelve hours to remove the carcass; on his failure to do so, then the fallmaster removes the same within twelve hours thereafter, at the expense of the owner, or if unfit for use, at the expense of the city, upon the order of the health officer. The accident happened before the expiration of twenty-four hours from the time the horse fell. The horse had not laid on the street a sufficient length of time to charge the city with constructive notice, and make it in default for not removing it. To charge the city with constructive notice the obstruction must have been of such long duration as to be generally observable, and sufficient time allowed for its removal: McLaughlin v. Corry, 27 P. F. Smith 113; Harrison et al. v. Collins, 5 W. N. C. 467; Manchester v. Hartford, 30 Conn. 118; McGinty v. New York, 5 Duer 674.</p> <p>In Norristown v. Moyer, supra, the obstruction had been erected for seven years. The case of Winn v. Lowell, supra, was under the Massachusetts statute, where the town is bound to remedy a defect existing for twenty-four hours.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 316.</p> <p>In the court below Mrs.- Sarah D. Williams brought an action of debt against Morris H. Danziger, to recover the first quarter’s rent on an alleged parol lease. The case was referred to arbitrators, under the Compulsory Arbitration Act, and it was agreed by the counsel of the different parties that the arbitration “ shall be final and without exception or appeal.” An award was entered in favor of defendant, when plaintiff filed the exceptions which will be found in the opinion of this court. The court below dismissed the exceptions and plaintiff took this appeal.</p> <p>It has always been the practice of the courts in this state to set aside the verdicts of juries and awards of arbitrators, whenever it appeared that injustice had been done through fraud, misconduct at the trial or undue influence, no matter what may have been the agreement of parties concerning the finality of the same. See Wynn v. Bellas, 10 Casey 164.</p> <p>The parties voluntarily sub'mitted the case to arbitrators, and stipulated that the submission should be final and conclusive, and they therefore are precluded by their agreement: McCahan v. Reamey, 9 Casey 536. (See following case.)</p>

<p>1. ■ A suit was brought to recover the first quarter’s rent, on an alleged parol lease. The defendant entered no plea, but filed an affidavit of defence wherein he denied the lease and the occupancy of the premises. A compulsory arbitration was had, and it was mutually agreed that the arbitration “ shall be final and without exception or appeal.” The award was for defendant and it was duly entered. An action was subsequently brought for the second quarter’s rent on the same alleged lease, and defendant again denied the lease, or the occupancy of the premises, and pleaded in bar the award in the previous action. Held, that it was a good plea in bar.</p> <p>2. It seems, that the affidavit of defence in the first suit was a part of the record, and should be considered when the record of said suit was examined, in order to be certain what was claimed and denied.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1878, No. 234.</p> <p>This was a precept from the register of wills of Allegheny county, directing an issue to try the validity of a writing purporting to be the will of John Grubbs, deceased. In said issue John F. McDonald and others, were plaintiffs, and James Grubbs and others, defendants. John Grubbs died May 26th 1876, in the sixty-ninth year of his age. He left a farm of about ninety acres, and a widow and five sons, Andrew, Lewis, James, A. Reed and Frank A. Grubbs, and one daughter, Martha, intermarried with Robert Huston. On the day before his death he made a will which contained the following provisions:</p> <p>“ I give, devise and bequeath to my beloved wife, Isabella Grubbs, who shall have her home with my two sons, Adam Reed and Francis A., and that they shall support her as long as she lives.</p> <p>“ I give, devise and bequeath to my two sons, Adam Reed and Francis A., the farm I now occupy, to be divided equally between them (Adam Reed and Francis A.); all the rest and residue of my estate, real, personal and mixed, I give, devise and bequeath to be equally divided between my three sons, Andrew, Lewis, James and my daughter, Martha Ann.</p> <p>“ And lastly, I do nominate and appoint John F. McDonald to be the executor of this my last will and testament.</p> <p>“In testimony whereof, I, the said John Grubbs, to this my last will and testament, have subscribed my name and affixed my seal this 25th day of May 1875.</p> <p>Signed in presence of us:</p> <p> </p> <p>At the time of his death Adam Reed and Francis A. Grubbs were living with their father, and were farming the place on which the testator had resided. His other children had left before the purchase of the farm by the testator. Until the date of his last illness there was no allegation that testator was not competent to make a will. Previous to his death he suffered with a painful illness, and the efforts of his physician were chiefly directed to alleviating his pain, and to attain that res.ult administered morphia to him. On the day of the execution of his will it was alleged that by reason of his illness and the influence of morphia, testator’s mind was so much impaired that he was not competent to make a will. Lewis Grubbs testified that his father did not recognise him. The testator’s widow testified that he was in an enfeebled condition, and did not recognise his son Lewis. On the. contrary the wife and son of James Grubbs testified that he was conscious. The attending physician testified he was conscious, rational and understood what he was talking about. The only persons who saw the testator between two and five o’clock on the day the will was executed, were John F. McDonald and John and Samuel Wallace, who were neighbors, and who were sent for to write and witness the will.</p> <p>It appeared from the testimony of McDonald and the two Wallaces that McDonald came to the house about two o’clock. James Grubbs ushered him into the room, and asked his father .if he knew the man, and the reply was given, “ Yes, Mr. McDonald.” He found Mr. Grubbs lying there greatly reduced, but not apparently suffering great pain. Testator spoke freely to him. Being left alone, McDonald asked him what he had been sent for. He replied that he wanted to get his business fixed up; that these two boys here (meaning Reed and Frank) had always stayed with him, and that he wanted to fix them right before he was called away. When asked what he meant by fixing them right, he said he wanted to divide that between them. -Mr. McDonald then asked him '(and Samuel Wallace was present and also so testified) whether it was his will that the place on which he lived should be equally divided between Reed and Frank, and he said it was. He told McDonald that his other children had been provided for, and that as to his wife, she was to have a home on the place and be supported by the two boys, Reed and Frank. McDonald started to write this down, but being a slow penman, and the old man’s disease requiring attention, he was delayed until Samuel Wallace came into the room, when he told him the instructions that had been given by Mr. Grubbs, and Wallace reduced them to writing. A blank was left in the will for the name of an executor. Before this was filled John Wallace came into the room, and in the presence of all three the will was read over to the testator. The witnesses wanted to know whom he would name as executor. Mr. Grubbs thought it would do as well without, but they differed with him, and asked him how he would like Mr. McDonald, and he at once expressed his satisfaction, saying, “If he would.” When the will was read over, he said it was all right. He was well acquainted with John E. McDonald, Samuel and John Wallace. When it came to signing, although a good penman, testator made his mark.</p> <p>At the trial, before Collier, J., the plaintiffs offered in evidence the instrument purporting to be the will. ' Defendants objected on the grounds that it was not sufficiently proven, and because it appeared to have been altered. (1st assignment of error.)</p> <p>The following points were submitted by plaintiffs, to which are appended the answers of the court:—</p> <p>1. That there is no evidence in the case upon which the jury would be justified in finding that any undue, influence was used upon the testator, John Grubbs, in regard to his last will and testament.</p> <p>Ans. “Affirmed.” (5th assignment.)</p> <p>8. The testimony as to the physical and mental condition of John Grubbs, before and after the execution of the will, and the testimony as to his previous statements of the way in which he proposed to dispose of his property, becomes entirely immaterial and irrelevant, if the jury believe McDonald, John and Samuel Wallace.</p> <p>Ans. “Affirmed.” (6th assignment.)</p> <p>The following were among the points of defendants, with the answers of the court thereto:—</p> <p>3. That one may be able to recognise an acquaintance, to answer questions rationally, and yet be incapable of exercising the connected thought, judgment and reflection necessary to execute a valid will.</p> <p>Ans. “Affirmed.”</p> <p>4. That where one is under the influence of narcotic poison, such as morphia, the tests of intelligence suggested in this point, viz., the recognition of an acquaintance and the ability to answer questions rationally, are to be received with greater caution.</p> <p>Ans. “ If the jury find the fact to be as stated in this point, they must take it with the other facts they find in the case, to enable them to determine the testamentary capacity of the testator.” (7th assignment.)</p> <p>In the general charge, the court, inter alia, said:—</p> <p>“ The paper has been admitted in evidence to you as the last will of the deceased. This makes a prima facie case for the plaintiffs, and unless the paper is impeached successfully, your verdict should be for the plaintiffs. But the defendants do impeach the validity of the will, on the ground of want of testamentary capacity in the testator to dispose of his property by will.</p> <p>[“It is alleged that at the time the will was signed, the'testator was in a dying condition, and unconscious of his act, and of this the defendants must satisfy you from the weight of the evidence. The burden of proof is upon them.] (3d assignment.)</p> <p>“ In conclusion, you will confine yourselves to the single question of the testator’s capacity to make the will; for there is no sufficient evidence to justify you in finding that undue influence was used to procure the making of the alleged will; [and in weighing the evidence, should you think it doubtful or balanced, you ought to incline in favor of testamentary capacity; that is, in favor of the plaintiffs.”] (4th assignment.)</p> <p>Verdict for plaintiffs; when defendants took this writ, and, inter alia, alleged that the court erred as set forth above.</p> <p>The alleged testamentary writing, when produced in court, had the name of John Grubbs subscribed thereto, with a seal affixed to his name, and a mark, with the words “his mark.” But it appears from the testimony of the subscribing witnesses that when they left the bedside of the dying man, the paper was in a very different condition. They admitted that after they had left the house of John Grubbs, they, or one of them, put the seal to his name and wrote the words “ his mark.”</p> <p>It was error for the court to instruct the jury that the defendants must satisfy the jury that Mr. Grubbs was in a dying condition, and unconscious of his act at the time pf the execution of the alleged will, and that the burden was upon them to show these facts. It was error also to instruct the-jury that if the whole evidence left the case doubtful as to testamentary capacity, the verdict should be for the plaintiffs: Symes v. Green, 5 Jurist N. S. 742; 1 Redfield on Wills 50. The court erred in affirming the 8th point of plaintiffs: Rambler v. Tryon, 7 S. & R. 90; Irish v. Smith, 8 Id. 573; McTaggart v. Thompson, 2 Harris 149.</p> <p>The will was properly admitted. It was proved by the testimony of the three subscribing witnesses. Their testimony, although not requiring it, was aided by the presumption of the testator’s capacity arising from the mere evidence that he had put his mark to the paper as and for his last will and testament.</p> <p>It was changed in but two particulars. When John Grubbs signed it with his X the words “his mark,” and the scroll seals did not appear on the paper. After the witnesses had left the house taking the will with them, they thought fit to add these words and the scrolls. By so doing they gave no additional force to the paper. It was complete without these additions. It would be a monstrous doctrine that a man’s last will should be liable to be defeated by the ignorance or fraud of its custodian.</p> <p>The presumption of capacity resulted from the proof of execution. As between the real parties the executor stood in the position of a stakeholder, and the fact of execution being proved, those who denied the validity of the paper had upon them the burden of proof. The pleas were undue influence, and want of testamentary capacity, and, inconsistent as such pleas are, they in effect amounted to a declaration that John Grubbs did execute the will as and for his last will, but that it ought not to operate as such, because it was either executed by him under undue influence, or because he had not at the time sufficient testamentary capacity.</p> <p>The court did not err when it said that if the evidence of McDonald and the Wallaces was true, there was no sufficient evidence from which the jury could find want of testamentary capacity: Cauffman v. Long, 1 Norris 72.</p>

<p>1. R. executed to H. a bond and mortgage, and gave therewith a certificate of no defence. These instruments were all placed in the hands of G. for the purpose of raising money for R., as the latter should need it, and give an order therefor. Without any instructions from R., G. negotiated the mortgage. Held, that although G. sold the mortgage, and caused it to be transferred without an order from R., and failed to account for the money received therefor, these facts were insufficient to defeat a recovery by the assignee. The papers which R. placed in the hands of G., not only impliedly authorized a sale of the bond and mortgage, but invited purchasers by expressly declaring that he had u no defence of any kind whatever.”</p> <p>2. Where one of two innocent persons must suffer from the tortious act of a third, he who gave the wrongdoer the means of perpetrating the wrong must bear the consequences of the act.</p> <p>3. An alteration of a deed, although material, if made by a stranger, will not affect the validity of the instrument.</p> <p>4. An immaterial alteration of a deed, although made by a party thereto, will not avoid the same or make it inadmissible in evidence.</p>

<p>1. Where a' storehouse becomes neccessary for keeping a dangerous explosive, the utmost care should be taken in selecting the site, and in its construction, with reference to safety of persons and rights of property. Places of storage of such substances must not be multiplied beyond the business requirements of the neighborhood.</p> <p>2. When consumption of the explosive article is large, to give or limit the right of storage to a single material or artificial person would impose a heavy burden on consumers for the benefit of the favored party, a wrong a court will not do but for the most urgent reason.</p> <p>3. It often becomes a grave question whether so great an injury would not be done to the community by enjoining a business that the complaining party should be left to his remedy at law.</p> <p>4. The circumstances of this case not sufficient to restrain the erection and maintainance of a powder magazine.-</p>

<p>"Where a mortgagor, at the same time that he executes a mortgage, delivers to the mortgagee a writing, certifying that he had no defence, he cannot set up, as against a purchaser of the mortgage, that there was fraud in obtaining the mortgage, or a misappropriation by the mortgagee of the money raised by the sale.</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county; Of October and November Term 1879, No. 116.</p> <p>Case by John Toomey against the Pennsylvania Company, ope-, rating the Pittsburgh and Cleveland Railroad, and Lyman Householder, a conductor on the railroad of said company, to recover damages for injuries alleged to have been received by having been pushed from a train of said company, while in motion, by said conductor. The facts are stated in the opinion of this court. The verdict was for the plaintiff for $500. The defendant took this writ.</p> <p>The company was not responsible for the act of the conductor if it was malicious: Manchester Passenger Railway Co. v. Donahue, 20 P. F. Smith 19.</p>

<p>Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1879, No. 79.</p> <p>This was a proceeding to lay out a public road from Springdale Station to Colfax Station, through the village of Springdale, on the West Pennsylvania Railroad, and alongside of said railroad for the distance of about a mile. Viewers were appointed December 11th 1875, who, in March 1876, filed a report in favor of the road. On May 2d 1876, the Pennsylvania Railroad, the íessee of the West Pennsylvania Railroad, filed exceptions to the report, among others, because it .was located upon a part of their right of way. On the 19th of May exceptions were also filed by Joseph Mellon, James Hartrey, A. M. Plilty, and. others, owners of property through which the road was located. They also filed a demand, in writing, for a jury trial, to determine the value of the land taken for public use, as secured to them by art. 16, sect. 8, of the constitution.</p> <p>On June 5th 1876, James Hartrey and A. M. Hilty presented an application to the court for an issue to try by jury the value of their lands so taken, and the damages sustained by them by reason of the opening of said road. On July 5th 1876, the court dismissed the exceptions and application, and confirmed the report of viewers. But on August 16th 1876, the court granted an order staying proceedings, and a rule to show cause why the order of confirmation should not be set aside. And on July 11th 1877, the court made an order referring the report back to the same viewers, with instructions “ to note upon the draft the courses and distances thereof,” and “to state whether or not the same have been staked upon the ground,” and “ to make return to the next court.”</p> <p>■On Sentember 6th 1877, two of the viewers, with one J. II. Reno, who had succeeded J. B. Stilley, as county engineer, filed a supplemental report, setting forth that they had noted the courses and distances on the draft, and had staked the road out on the ground. They also, in their report, set forth the fact that the road passed through improved lands, a fact omitted in the former report, but not submitted to them by the order referring the report back.</p> <p>To this report the above parties, excepting the Pennsylvania Railroad, renewed their former and filed additional exceptions, and again demanded a jury trial. The case then remained in this position until the 15th of July 1878, when an agreement having been filed between the attorneys of the petitioners and the attorneys of the railroad, agreeing that the exceptions of the railroad should be withdrawn and the road confirmed, on condition that Antes Snyder, the engineer of the railroad, should fix the true line of the railroad or old canal along which the road was to be opened, the railroad withdrew its exceptions. Then on the 30th of November 1878, the court dismissed the exceptions and confirmed the supplemental repoft of the viewers. The court made no order as to the demand for a jury trial, and afterwards, on January 16th 1879, made an order directing the road to be opened! Then on March 6th 1879, the exceptants sued out this writ of certiorari.</p> <p>The following assignments of error will show the exceptions in the court below:</p> <p>1. The court below erred in dismissing the exceptions, and in confirming the report of the viewers, July 5th 1876. 2. In making the order of November 30th 1878, dismissing the exceptions and confirming the supplemental report of viewers. 3. In not awarding an issue to try by jury the question as to the value of the land of exceptants appropriated for the use qf said road, and the damages sustained by them by reason of the location and opening of the same. 4. In refusing the following application : “ And now;, June 5th 1876, comes James Hartrey and A. M. Hilty, and except to the report of the viewers in this case for the causes assigned in the exceptions already filed by Joseph Mellon, and others, and for the reason that the viewers have not allowed them damages for the land taken for said road. The said James Hartrey alleges that the damages sustained by him, by reason of the premises, is at least the sum of $1000, and the said A. M. Hilty claims that the damages sustained by him, by reason of the premises, amounts at least to the sum of $1000, and they ask that- the same be inquired of by a jury, and that an issue be formed to determine by the verdict of a jury how much damages they or either of them have sustained by reason of the taking of their said land for public use.” 5. In overruling the first exception filed to the first report of viewers, to wit: “ It does not sufficiently appear by said report that they gave notice to the property holders and public interested. The report alleges ‘ that they met pursuant to legal notice.’ ” 6. In overruling the second exception to the first report, viz.: “ The report and the draft are both silent as to the fact whether the lands through which it passes are improved or not.” 7. In overruling the fourth exception to the first report, viz: “ This road is located a part of the way upon a public road already laid out and in use.” 8. In overruling and refusing the request made in the ninth exception filed in the first report of viewers, to wit: “ And the exceptants also demand that the question as to the damages done to their said real estate, by the appropriation of the same for public use as a highway, may be inquired of by a jury, and that the court will form an issue to try the same.” 9. In overruling the first exception filed to the supplemental report of viewers, viz.: “ The same persons who are viewers did not act upon or sign the supplemental report. Mr. Reno was not the artist in the original report.” 10. ■ In overruling the second exception filed to the supplemental report, to wit: “ The viewers gave no notice of the time and place they met to prepare their supplemental report, or when they met on the ground to stake out the same, and the supplemental report does not set forth when and- where they met to discharge their duties.” 11. In refusing and overruling the third exception filed to the second report, to wit: “The said exceptants renew their demand for a jury trial to pass upon and determine the amount of damage done to their respective freeholds by the location and opening of said road.” 12. In overruling the fourth exception filed to -the supplemental report, to wit: “ Exceptants except and object to the agreement filed by Brown & Lambie and Hampton & Halzell, purporting to assent to the fixing of the location of said road by Antes Bnyder, &c. These parties had no right to bind us or other property holders.” 13. The court below erred in confirming the supplemental report of viewers, while the confirmation of the original report still stood in full force and unrescinded. 14. In confirming a road which, in its location, materially interferes with five dwelling houses, located in a country district, without sufficient proof of the necessity of the same*</p> <p>Under art. 16, sects. 8 and 9, of the new constitution, and the decision of this court in Pusey’s Appeal, 2 Norris 67, we had a right to demand a trial by jury to determine the value of the land appropriated, and the damages caused by the tearing down or removing of the dwellings.</p> <p>The fact that notice was given should appear on the face of the report: Boyer’s Road, 1 Wright 257. The report sets forth that the viewers met pursuant to legal notice, but when, or where does not appeal’. The improvements must appear by the report or draft: Potts’s Appeal, 3 Harris 414. Locating a new road on the bed of an old one is error: 6 Casey 165. A county road cannot be laid out through a man’s dwelling without affirmative proof of its necessity: In re Second Street, 11 Harris 346.</p> <p>It may be that the plaintiffs in error had a constitutional right of appeal and trial by jury, for the ascertainment of their alleged damages, subject to the regulations prescribed by law — but we deny that they exercised such right, or brought their case within the purview of the constitution and the statute regulating appeals in such cases.</p> <p>No appeal was entered or attempted in this case, but there was a demand for an issue in the Quarter Sessions, and a trial there — a proceeding unknown to the law. The report sufficiently sets forth that public notice was given in a legal manner, of the meeting of the viewers, and that the view was had in pursuance thereof: Road in Middle Creek, 9 Barr 69; Boyer’s Road, 1 Wright 257.</p> <p>Where viewers omit to note the improvements, a report may be referred back to them for correction: Potts’s Appeal, 3 Harris 414; Towamencin Road, 10 Barr 195; New Hanover Road, 6 Harris 220. The report was sent back simply to supply clerical omissions. A majority of the original viewers signed the supplemental report and their action was sufficient. No part of the new road was located upon an old road.</p>

<p>Appeal from the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 10. In Equity.</p> <p>Bill in equity, filed by Henry A. Freyvogel, against William J. Anderson, for a partnership account. During the pendency of the proceedings, John O’Keefe, assignee in bankruptcy of Henry A. Ereyvogel, was substituted for said Ereyvogel, and Malcolm Hay, administrator of William J. Anderson, for said decedent.</p> <p>The case was referred to two masters, and from the facts, as found by said masters, it appeared that from 1864 until 1868 Ereyvogel and Anderson were partners, under the firm name of William J. Anderson & Co. In this copartnership Anderson had a five-eighths and Ereyvogel a three-eighths interest.</p> <p>On September 23d 1868, one Millinger conveyed a lot in South Pittsburgh to Anderson for $20,000, which amount was raised on a note of the firm. The expenses of this purchase, the discounts on this note and its renewals, and the taxes on the lot were charged to Anderson’s individual account on the books of the firm. Some-of these entries were made by Ereyvogel himself, and the rest at his instance. About two years after the purchase, Anderson sold the lot at a profit of $6637.35; and when, fourteen months thereafter, the partners divided their business, Ereyvogel caused an account to be opened called the South Pittsburgh lot- account, into, which the above entries were carried, and either partner credited with one-half of the profit from the sale of the lot. Anderson objected to this account when he discovered it, but whether to the •whole of the account or to the proportions allotted to each, did not clearly appear.</p> <p>In January 1871, the firm purchased for $40,000 the lease, machinery, &e., of S. S. Eowler’s assignee, William Yankirk, where they carried on business under the firm name of Anderson & Ereyvogel, Anderson having charge of th'e new works and Ereyvogel of the old. In 1872 the firm dissolved, and it was agreed that An-, derson should adjust the business of the new and Ereyvogel of the. old firm, and a mutual settlement was then to be made. In September 1872, the clerk of Anderson made an inventory of-the stock on hand in the new works, which contained an itemized statement, of the machinery and articles purchased in January 1871 from Yankirk; without giving the separate valuations of each, and at the-end of the list made this memorandum: “All the foregoing articles, machinery, &c., were purchased from William Vankirk, assignee, for $40,000.” When the firm dissolved, Stark,- McMahon & Co. were indebted to William J. Anderson-& Co. in the sum of $6014.57, and shortly thereafter the latter firm sold out to McMahon & Campbell, taking their notes for the purchase-money, which being in amount about the sum due to William J. Anderson & Co., they endorsed them to said firm. Ereyvogel had these notes discounted, b.ut was obliged to lift them, as neither of the above firms paid them. One of these notes Ereyvogel made no entry of; one he. charged to the account of Stark, McMahon & Co., when he discounted it, but made no counter charge when he lifted it; and another he charged to the account, claiming that it was discounted “to lift a note of James Wood & Co. that Stark, McMahon & Co. owed;” but there was no evidence to show how or why they were liable. He also charged the account with $2443.33, the amount of the note discounted to lift the third note alluded to above. The indebtedness of Stark, McMahon & Co. to William J. Anderson & Co. thus appeared by these entries to have been increased to $8786.69, without any new transactions.</p> <p>Two years after the firm had dissolved Freyvogel filed this bill for an account.</p> <p>Upon hearing before the master, Freyvogel was offered as a witness in his own behalf, and pending his examination in chief, the defendant, Anderson, died. At the next meeting after the appointment of Anderson’s administrator, motion was made by defendant to strike out said testimony of Freyvogel, which motion was refused by the master, because, as was stated by him, “at the time it was given and reduced to writing it was legitimate testimony, and because the defence had sufficient time and opportunity to cross-examine the plaintiff, and have the testimony of the defendant taken;” and for the further reason that since the death of Anderson, Freyvogel had been declared a bankrupt, and his assignee substituted as plaintiff in the case.</p> <p>The first master charged Anderson with $40,000, being for the leasehold, machinery, &c., of the machine-shop and foundry of Anderson & Freyvogel, which passed into Anderson’s hands at the time of the dissolution of said partnership, and which remained in his hands at the time of his death, and was after-wards sold by his administrator at public sale, after repeated efforts, under agreement with the plaintiff, Freyvogel, for the sum of $16,000.</p> <p>He also reported that the South Pittsburgh lot was the individual property of Anderson. He also reduced the Stark, McMahon & Co. account to $6014.57. The second master, to whom the case was again referred to take further testimony, agreed with the first master in charging Anderson with the $40,000; but found that the purchase of the South Pittsburgh lot was a firm, transaction, and that’Freyvogel was entitled to three-eighths of the profits of the sale. He also reported that Anderson, should be charged with five-eighths of the apparent balance of the Stark, McMahon & Co. account, instead of the balance at the time of the dissolution. The balance he found due to Freyvogel was $6985.55, on which he allowed interest from the dissolution of the firm, which interest amounted to $2417. The court sustained this report, except the charge of interest, when the administrator of Anderson, Malcolm Hay, Esq., took this appeal, and alleged that the court erred,</p> <p>1. In sustaining the action of the masters in admitting as evidence the testimony of Freyvogel, the plaintiff; Anderson, the defendant, 'having died before the completion of Freyvogel’s examination in chief. 2. In confirming the report of the master charging Anderson with $40,000 for the lease, machinery, &c., of Anderson & Freyvogel on hand at the date of dissolution of that firm. 3. In confirming the report of the second master, reversing the finding of the first master as to the ownership of the South Pittsburgh lot, and crediting to Freyvogel three-eighths of the profits of the sale thereof, to wit, $2542.25. 4. In confirming the report of the second master, reversing the' finding of the first master, correcting the Stark, McMahon & Co. account, and giving Freyvogel credit as for a lost debt of $8738.69, instead of $6322.15, a difference of $2414.54. 5. In entering the decree ordering the payment by appellant to appellee of $6985.55, and directing such payment to be made by appellant as administrator and receiver. 6. In entering the decree in favor of appellee.</p>

<p>1. Where a city engineer is directed to let a contract for the paving of a street, if there has been no previously established grade, the engineer may himself adopt one.</p> <p>2. But where there is a grade already established by ordinance, and the engineer disregards it and adopts another, the city may repudiate the act of the engineer and avoid the contract. If, however, the city adopts such irreJ guiar grade and accepts the work, no third person can intervene to avoid the contract.</p> <p>3. The appellant made no objection to the grade or the work as it progressed. The work was undertaken at her instance, among others, and for the benefit of her property, and her agents aided the contractor in hauling and furnishing material. Held, that she was estopped from controverting the acts of the city and its contractor, even though the contract under which the grading was done was void for -want of power in the city to execute it. Bidwell v. City of Pittsburgh, 4 Norris 412, followed. Addis v. City of Pittsburgh, 4 Norris 379, distinguished.</p>

<p>Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 134.</p> <p>Appeal of J. W. Wetmore and the Blair Iron and Steel Company from the decree of the court distributing the proceeds of the sheriff’s sale of the works of said company.</p> <p>Thomas S. Blair and wife obtained a judgment against the Blair Iron and Steel Company, and levied on the lease, fixtures, patents and personal property of’ said company, and the same were sold at sheriff’s sale to J. W. Wetmore.</p> <p>An auditor was appointed to distribute the fund arising from the sale. Before him there appeared J. W. Wetmore, claiming the fund on the writ of Blair and wife; the Atlas Works claiming upon a mechanics’ lien, and a large number of employees with claims for wages. It was agreed that the fund should be first applied to the payment of these wages.</p> <p>The' claim of the Atlas Works set forth, inter alia, that it was “ for the payment of the sum of $6283.99, against all that certain, part four story and part one story, frame and iron-clad building, known and used as a converting-house (used for converting crude ore into iron sponge], having a width or front, &c.; * * * also, a one-story frame and iron-clad building, known and used as a melting-house (used for converting iron sponge into steel ingots), situate, &c.; * * * also, a one-story frame and iron-clad building, known and used as a gas-producing house, &c.; * * * including all the machinery, steam-engines, boilers, pumps, furnaces and other fixtures, * * * known as the Blair Iron and Steel Works, &c. * * *</p> <p>“ The sum aforesaid being a debt contracted for work done and materials furnished, namely, for iron castings and machinery made by said claimant, within three months last past, in and about the erection, construction and improvement and fitting up of the said buildings for the use for which they were constructed, to wit, the manufacture of. iron, steel, &c., of which buildings the said the Blair Iron and Steel Company was, and is the owner or reputed owner thereof,- and at whose instance and request the said work was done, materials furnished, and eastings and machinery made, &c.”</p> <p>There was evidence that the work done was in the construction of a new furnace, and that other articles were furnished for a steel works which were then in operation.</p> <p>In ruling upon the exceptions to the validity of the claim the court, inter alia, said: “ No question has been made as to the propriety of the claim as repairs (so far as a portion of the items is concerned), except, generally, upon the right to claim for repairs, under the language employed in the lien. The lien says that the debt is for work and materials ‘in and about the erection, construction, improvement and fitting up of the buildings for the use for which they were constructedand it is contended that the lien being for ‘ erection,’ and the evidence being that the materials, &c., were for ‘repairs,’ the claim must be disallowed: Rynd v. Bakewell, 6 Norris 640. Taking the whole lien together, it clearly appears therein that the articles furnished, including the furnace, were additional and supplemental to a works already erected, equipped and in operation. We may, therefore, fairly hold that the words ‘improvement and fitting up’ avoid the objection-made.”</p> <p>The court dismissed the exceptions to the report of the auditor, and made a decree that the mechanics’ lien, filed by the Atlas Works, was good to the extent of $2202.27, and directed distribution to be made accordingly. From this decree this appeal was taken.</p> <p>The Blair Steel Works were erected in 1872 for the purpose of manufacturing steel by a patent process invented by Thomas S. Blair, and put in operation.</p> <p>The furnaces.first were known as “Frank” furnaces. In the spring of 1875, Mr. Blair concluded to put in a new furnace, known as the “ Sieman” furnace, and made a contract with the Atlas Works to furnish the castings and iron material for it, which was done, and the furnace put in full and successful operation on April 21st 1875, as found by the auditor in both reports. This furnace was an addition to the furnace already in operation. It was no part of the original building and construction. It was not a repair, but a new furnace. The plaintiff has filed its lien as for erection and construction.</p> <p>Although the word improvement is used in the claim, yet take the whole sentence, and it is a claim - filed for iron castings and machinery used in the original construction of the works for the purpose originally designed, viz.: the manufacture of iron and steel.</p> <p>The case, therefore, falls within the ruling of Rynd v. Bakewell, 6 Norris 460.</p> <p>A building erected for a manufacturing purpose, and all machinery, which is necessary to constitute it, and without which it would not be a- manufactory at all, passes with the freehold : Voorhis v. Freeman, 2 W. & S. 116. Lathes, vises, &c., no matter how fastened, are part of the realty: Christian v. Dripps, 4 Casey 271. Rolls of an iron mill are part of machinery, whether in place or detached: Yoorhis v. Freeman, supra. Also, the floor of a bar or iron mill not fastened, but kept down by their own weight: Pyle v. .Pennock, 2 W. & S. 390. Everything put into and forming part of a building or machinery for manufacturing purposes, is part of the freehold: Hoskin v. Woodward, 9 Wright 42; Hill v. Sewald, 3 P. F. Smith 271.</p>

<p>The wife of B. acquired by descent an undivided interest in a tract of land. B. subsequently purchased the remaining interests from the brothers of his wife. B. died intestate, and his daughter petitioned the Orphans’ Court for partition, the petition setting forth the title of decedent, but containing no recital of the widow’s interest. The widow appeared and consented to the partition, and a purpart was awarded to the daughter, who brought an action to eject the mother therefrom. Held, that the widow was estopped from setting up her title by having approved the order of court making partition, and having agreed that it should be finally confirmed.</p>

<p>1. To the notice of inquisition a sheriff made return, “Having made diligent search and inquiry, and not being able to find the within named defendant, I did, this 15 th day of October 1872, post the within described premises with a true and attested copy of this writ.” Held, that if this return was defective under the Act of June 16th 1836, on the ground that it did not show legal notice to defendant, it was an irregularity which did not render the venditioni exponas issued in pursuance thereof a void process and could not affect the title of the purchaser from the sheriff’s vendee.</p> <p>2. An order of court setting aside a condemnation and venditioni exponas, by reason of such an irregularity, is a nullity as to said bona fide purchaser.</p>

2, of Allegheny county: Of 'October and November Term 1879, No. 235. Ejectment by Martin Reed against John K. Stewart, William Weaver and others, for two tracts of land in Allegheny county, in possession of said Weaver as tenant of said Stewart.

2, of Allegheny county: Of October and November Term 1879, No. 327. Scire facias sur mortgage by S. B. W. Gill, for the use of Mrs. Eliza Lewis and Miss Rachel Walker, against C. B. Jeffers and Margaret J., his wife, with notice to Robert McCain terre-tenant.

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 168.</p> <p>Assumpsit by James L. Ruple, for use of Amos Lewis, against John C._ Bindley.</p> <p>The facts were these: James L. Ruple was a stair-builder; Amos Lewis was the proprietor of a planing-mill and lumber yard in the city of Pittsburgh; John C. Bindley was a builder and contractor. In June 1877, Bindley was erecting a building in Pittsburgh, and Ruple made a bid to Bindley to put up the stairs for him. Bindley agreed to accept his bid at $133, provided Ruple would allow credit .for $28.12, the amount of a hardware bill, which Ruple owed to England & Bindley, balance to be paid when the stairs were finished. Ruple, not having the means to provide the materials and support himself while he was doing the job, applied to Amos Lewis to assist him. Lewis then agreed to furnish to Ruple the necessary materials and advance money, as the work proceeded, to the amount of $104.85, the balance of the contract price for the stairs, after deducting the England & Bindley bill for hardware, which balance it was agreed should be paid to Lewis, and to secure Lewis an order was drawn up and signed by Ruple, in the following words, viz.:</p> <p>“ Pittsburgh, June 18th 1877.</p> <p>Mr. John C. Bindley :</p> <p>Pay to Amos Lewis the sum of $104.85, and charge to my account. This order payable when I finish stairs at Congress Hall, on Webster street.</p> <p>Jas. L. Ruple.”</p> <p>Lewis then went on and furnished to Ruple the necessary materials for the stairs, and supplied him with money every Saturday evening, while he was working at the stairs, to the amount of $104.85.</p> <p>Shortly after the work was commenced, Bindley was informed of this transaction, and the order was presented to him for acceptance. Bindley refused to accept the order in writing, but said it was all right, provided Ruple finished the stairs, and he would accept when the stairs were finished. Ruple finished the stairs according to contract, and notwithstanding his promise, Bindley refused to accept or pay the order; and afterwards, on the 8th of December 1877, as he claimed, he settled with Ruple, and took his receipt for $138, in full. Lewis then brought this suit in the name of Ruple, for his use, treating the order and notice of the same as an equitable assignment of the claim by Ruple to him, Lewis.</p> <p>The plaintiff declared upon the order, and the promise of Bindley to pay it when the work was finished, averring the completion of the work, and also added common counts. Defendant pleaded nonassumpsit, payment with leave, &c.</p> <p>On the trial the plaintiff proved the contract between himself and Ruple, the notice to Bindley, the drawing of the order, the presentation of the same to Bindley and his promise to pay it when the work was completed; also proved the completion of the stairs by Ruple, that plaintiff furnished the materials and money to Ruple as the work progressed, offered the order and rested. The defendant then claimed that he never agreed to pay the order at any time, and produced the receipt of Ruple, dated December 8th 1877, and alleged that he had settled with Ruple in full.</p> <p>The following points were presented by the plaintiff, both of which the court refused:—</p> <p>1. That the order held by the plaintiff, drawn by Ruple on the defendant, operated as an equitable assignment of the debt (if any) due by Bindley to Ruple, and if Bindley, after notice of this order, paid the money to Ruple, he paid it in his own wrong, and is still liable to the plaintiff.</p> <p>2. That if the jury find from the evidence that defendant promised to pay the order in evidence as soon as the work to be done by Ruple W’as finished, and that on the strength of Said promise the plaintiff advanced money and material to Ruple to build said stairs, to the amount of said order, and that Ruple finished the stairs, that then' said defendant is liable for the amount of said order.</p> <p>The first and third points of defendant were as follows, both of which the court affirmed:—</p> <p>1. That the promise to pay Lewis, alleged to have been made by Bindley, the defendant, if made at all, was without consideration, and was void as a nudum pactum, and there can be no recovery in this suit on such promise.</p> <p>3. That the plaintiff in this action can recover only such sum as the 'defendant owed Ruple at the time the action was commenced, and if the jury believe that prior thereto Ruple had been paid in full, their verdict must be for the defendant.</p> <p>In the general charge, the court, Stowe, P. J., inter alia, said:</p> <p>“ There is nothing in the evidence, under the pleadings in this case, which will justify a recovery in this suit.”</p> <p>Verdict for defendant accordingly, when plaintiff took this writ, and alleged that the court erred, 1. In the instruction above; 2 and 3. In the refusal of plaintiff’s points; and 4 and 5. In the affirmance of defendant’s.</p> <p>This case is ruled by Caldwell v. Hartupee, 20 P. F. Smith 74. If one man delivers goods to another upon the request of a third party, and upon the promise to pay for the same at a particular time, or upon the happening of a certain event, when the conditions are performed by both, he is bound by his promise. It is not a promise to pay the debt of another, but a debt created upon the faith and strength of the promise.</p> <p>In Caldwell v. Hartupee, supra, the money had been earned or was due and coming to Hartupee before the order was given, and therefore in that case the court held that Hartupee had a right to assign it, and that an order given by him with notice of the order, was an equitable assignment that would take the money.</p> <p>The third specification of error simply asserts that if Bindley promised Lewis that he would pay the order when Ruple finished the stairs, and. Ruple did so, that then Bindley must pay the debt which he owed Ruple to Lewis, as the assignee of the claim, and that question is not affected by the fact of money and material being advanced by Lewis to Ruple on the strength of the promise.</p> <p>In Jermyn v. Moffit, 25 P. F. Smith 400, this court held “ that an assignment of' wages not yet earned, although followed by notice of the assignment, is insufficient to make a valid transfer of the debt without acceptance.”</p>

<p>Error to the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 172.</p> <p>Covenant on a policy of fire insurance by John F. Kronk and C. Conway, for use of Caroline Kronk, for use of Adam Bonscheiner, against The Birmingham Fire Insurance Company.</p> <p>At the trial before Bailey, J., it appeared that on the 13th of April 1875, said company issued a policy of insurance to O. Kronk, wife of John F. Kronk, and O. Conway, to indemnify them against loss or damage by fire to the amount of $1250, on merchandise and household goods in a certain hotel, kept by said parties.</p> <p>Said policy contained, inter alia, the following condition : “ If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the assured, it must be so represented to the company, and so represented in the written part of this policy, otherwise the policy shall be void.”</p> <p>On April 20th of the same year, Conway, with the approval of the insurance company, assigned his interest in said policy to Mrs. Kronk — thus vesting in her the sole ownership of the policy.</p> <p>The money with which Mrs. Kronk had made purchase of the property insured had been loaned to her by one Adam Bonscheiner, the equitable plaintiff. To secure its repayment it was agreed that a bill of sale of the goods should be made to Bonscheiner by Mrs. Kronk and her husband, the latter, however, to retain the custody and use of the goods as though no such document had been signed. A bill of sale was accordingly made, and the schedule thereto attached signed by Kronk and wife. It was -then delivered to Bonscheiner. Whether this bill was executed and delivered before or after the policy was issued was not clear. It was dated April 3d, and John F. Kronk testified it was made at that time. The evidence, however, was conflicting.</p> <p>On December 13th Í875, the insured property was entirely con- ' sumed by fire. The company refused to pay the loss on the ground that the condition in the policy was avoided by reason of the bill of sale to Bonscheiner.</p> <p>In charging the jury the court, inter alia, said: “ My view of the law is that the bill of sale had the effect of conveying such title to Adam Bonscheiner, and such property in the goods and chattels that the sole, entire and unconditional ownership of the property was not in Mrs. C. Kronk on the 13th of April 1875, the date of the policy of insurance.” And in answer to defendant’s third point charged, “ That under all the evidence in the case the plaintiffs are not entitled to recover.”</p> <p>Verdict for defendant, when plaintiffs took this writ and alleged that the court erred in charging as above.</p> <p>Even if the transfer of the property insured to Bonscheiner had been absolute, and the policy subject to forfeiture therefor, unless the company’s written consent was produced, the forfeiture was still capable of being waived, and the evidence tending to show a waiver and an estoppel on the company’s part was for the jury: Buckley v. Garrett et al., 11 Wright 208.</p> <p>But the contract with Bonscheiner did not amount to an absolute transfer. It was a mortgage merely, changing neither the apparent title nor the possession. It was an executory contract, giving rise to an equity between Kronk and Bonscheiner, to which the insurance company were strangers. They could not set it up, and it had no effect to invalidate the policy: Hill v. Cumberland Mutual Protection Co., 9 P. F. Smith 476-7. The assured still retained the general right of property in the goods, at the time of the fire, as well as their possession. The most that Bonscheiner had was a special or qualified right of property. It has been held by this court that even this qualified right of property, when accompanied by the actual possession thereof, will not sustain a forfeiture of an insurance policy, which provides therefor in case of transfer without the insurer’s consent: Franklin Fire Insurance Co. v. Findlay, 6 Whart. 498.</p> <p>That the interest of the assured was not, at the time of the issuing of the policy, “entire, unconditional and sole,” was certainly proved.</p>

<p>1. Under what circumstances dying declarations are admissible in evidence.</p> <p>2. It seems, that evidence of a man’s natural disposition is not admissible to excuse or mitigate his crime.</p> <p>3. Keenan v. Commonwealth, 8 Wright 55, approved.</p>

2, of Allegheny county: Of October and November Term 1879, No. 104. Assumpsit by John Gilmore against William H. Brown and N. M. Jones, trading as Brown & Jones, to recover the value of two empty coal barges.

1, of Allegheny county: Of October and November Term 1879, No. 276. Case by Jacob Cupps and E. W. Cupps, his wife, in right of said wife, against the Peoples’ Savings Bank, to recover the amount of a deposit in said bank in the name of the wife. It appeared that Mrs. E. W. Cupps, who was an old lady, resided with her husband about fifteen miles from Pittsburgh.

<p>Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 292.</p> <p>Appeal of Robert Means, committee of A. A. Wernet, a lunatic, from a decree of the court discharging a rule to show cause why a judgment entered by confession on a warrant of attorney should not be opened and the committee of defendant allowed to make defence.</p> <p>In 1875 Wernet came to Allegheny county from Australia, where he had been residing for a number of years. About the same time, there arrived, sent to a Mr. Scully, of Pittsburgh, the exemplification of a record of the Supreme Court of the colony of Australia, under the seal of said court and that of the United States consul at Melbourne, wherein it appeared that a judgment had been entered in said court on July 20th 1875, in favor of one Dalton against said Wernet for 2000?. With the record was a request from the consul that Mr. Scully w.ould have the judgment entered so as to be a lien on Wernet’s estate in Allegheny county. Wernet expressed his willingness to have it so entered, and immediately censulted an attorney to do so. Upon examination it was discovered that the exemplification was defective, inasmuch as it did not show either service upon or an appearance by Wernet. It was necessary, therefore, that suit should be brought against him, and to avoid costs a judgment was confessed for the amount of the Australian judgment. On May 3d 1878, an inquisition found that Wernet was a lunatic, and had been for the twenty-eight years last past, and that he did not have any lucid intervals. On September 28th 1878, the rule in this case was taken. On the rule testimony was taken, a portion of which will be found in the opinion of this court. And on July 2d 1879, the rule was discharged, when this appeal was taken, under the provisions of the Act of April 4th 1877, Pamph. L. 53.</p> <p>The finding of the inquisition was prima facie evidence of incapacity to contract; and does not merely shift the burden of proof, but, like a legal presumption, it continues to operate until the question of sanity has been decided by the jury: Rogers v. Walker, 6 Barr 371.</p> <p>To this prima facie case in favor of appellant is offered the testimony that he appeared to be sane when the judgment was confessed. This evidence could not establish that he had lucid intervals: Attorney General v. Parnther, 3 Bro. C. C. 441; Ray’s Med. Jurisprudence of Insanity 224; George’s “ Des Maladies Mentales” 46; Reed’s 21st Essay on Hypochondriacal Affections; Whart. Law Dic. 363-458.</p> <p>Under the peculiar circumstances of this case, the failure of Dalton to answer, by his own testimony, the allegations of the petition of the committee of Wernet, or to have forwarded his own depositions to be used at the argument, should be conclusive against his claim on the agreement and warrant of attorney: Whart. on Ev., sect. 1266; Fowler v. Sergeant, 1 Grant 355; Frick v. Barbour, 14 P. F. Smith 120. He knew also of Wernet’s lunacy, and this should avoid the confession of judgment: Hope v. Everhart, 20 P. F. Smith 231.</p> <p>The purported record is, as set forth by the certificates annexed, but an “ office copy” of a judgment by default, which “ office copy” does not show a summons issued on defendant, nor any service or return of a summons on defendant. Not a single date appears on it, except date of judgment. Until service is shown no jurisdiction can attach, and want of jurisdiction is always a defence in actions on record. In an action upon a judgment of the court of another state the record may be contradicted by evidence impeaching the same.</p> <p>Judgments obtained before lunacy found are not affected by the finding: Wright’s Appeal, 8 Barr 57. Even as respects prior executory contracts the finding is but prima facie evidence of incapacity: Hutchinson v. Sandt, 4 Rawle 233; Noel v. Karper, 3 P. F. Smith 97. A foreign judgment, if the court had jurisdiction, and in the absence of fraud, is conclusive upon the merits: 2 Kent 118-121; Wharton’s Conflict of Laws, sect. 815; Bouvier’s Law Dic., tit. Foreign Judgments.</p>

<p>1. Any act of a landlord which deprives his tenant of that beneficial enjoyment of the premises to which he is entitled under a lease, will amount law to an eviction and suspend the rent.</p> <p>2, Where repairs are not ordinary but of a character to deprive the tenant of all beneficial enjoyment of the premises, or at least seriously interrupt it while the repairs are in progress, they amount to an eviction and suspend the rent.</p> <p>3. Magaw v. Lambert, 3 Barr 444, followed.</p>

8. Appeal of Edward Cable from the decree of the court directing the payment by appellant of a certain legacy out of land devised by John Cable, deceased. John Cable died in December 1876, leaving a will, which contained the following provision:— “ First. I give and bequeath unto my two sons, John and Edward Cable, all my farm, after my death, to them so long as they do live, and after their death to their children.

<p>Error to the Court of Common Pleas, No. 2, of Allegheny county: Of October and November Term 1879, No. 203.</p> <p>Debt by the borough of Sewickley against Robert Watson and Margaret A. Watson, his wife, for an assessment alleged to be due for the widening and extension of a1 street..</p> <p>On the 20th April 1867, a petition was presented in the Court of Quarter Sessions of Allegheny county, at No. 11, March session 1867, setting forth that an ordinance had been passed by the town council of the borough of Sewickley for the widening and extension of Crooked street, in said borough, and changing the name thereof to Lincoln avenue. The court thereupon appointed viewers, and on the 8th of June 1867 the viewers presented their report, which was approved and filed. Attached to the report was a plan of the proposed street, showing the abutting properties, marked with the names of the owners of the property. The report of viewers also contained a schedule of assessments on the owners of the various properties for damages and contributions for benefits.</p> <p>Exceptions were filed to the confirmation of the report by Robert Watson and Robert Dickson, two of the parties assessed for contributions in said proceeding, but on a hearing the exceptions were dismissed and the proceedings confirmed on the 25th February 1868. On the 22d May 1869, a petition of citizens of said borough was presented in the Quarter Sessions, and a rule granted on the burgess and council to show cause why they should not proceed to open said avenue according to the report of the viewers as confirmed by court, to which an answer was filed by the burgess and council, setting forth that much dissatisfaction was felt by a majority of the citizens directly or indirectly interested therein as to the location of the street, and that the assessment of benefits and damages was greatly oppressive and injurious, and that proceedings were being taken to procure a review in said matter, and pray ing the court to dismiss the rule. In connection with the answer a petition was filed by the burgess and town council, praying for a review and the appointment of reviewers. Accompanying the petition for a review was a petition, signed by ninety of the citizens of said borough, praying the court to grant a review in said matter.</p> <p>The next step in the case was taken on the 10th of June 1876 —eight years after — when the borough solicitor presented a petition to the court asking for leave to withdraw all papers filed after the confirmation of the original report of viewers. This was not allowed.</p> <p>On the 22d May 1879, a petition was presented by citizens in interest of said borough, asking the court for a writ in the nature of a mandamus, and a rule was granted on the burgess and town council to show cause why an attachment should not issue against them for a failure to open the street in accordance with the order of court, to which an answer was filed on the 2d June 1879, alleging that no order had ever been issued by the court, but that a petition was presented praying for such order on the 22d May 1869, and the said petition was dismissed by the court.</p> <p>In the report of the viewers, the property of the defendant was assessed both for damages and benefits in the name of Eobert Watson.</p> <p>Afterwards, to wit, at No. 1145, March Term 1877, an action on the case was brought against Eobert Watson by the borough of Sewickley, alleging a liability under the proceedings at No. 11, March Sessions 1867. This case came on for trial on the 12th November 1879, and a special verdict rendered, and after argument in banc, the court entered judgment for defendant non obstante veredicto.</p> <p>Afterwards, to wit, on the 22d March 1879, suit was brought in the nature of an action of debt against said Eobert Watson and his wife, Margaret A. Watson, for the amount claimed to be due said borough, under the proceedings at No. 11, March Sessions, 1867. The affidavit of claim averred that the assessment was made in the name of Eobert Watson, but that Margaret A. Watson, the real owner of said property, was liable for the payment of the same. The plot attached to the report of the viewers filed, contained no accurate description of any of the properties abutting on the proposed avenue, not even giving the number of front feet on said avenue or any other means whereby the properties could be described or ascertained, while in the affidavit of claim the property of Margaret A. Watson was accurately described as it appeared in her deed, and while it was admitted in the affidavit of defence that the property described in the affidavit of claim and narr. was the property of Margaret A. Watson, there was no proof on the trial of the cause that the property so described was the property marked in said plan, in the name of Eobert Watson. To this the defendant, Margaret A. Watson replied, denying that she was liable for the payment of the same; that two years before the opening of said avenue, she became the owner of said property in her own right; that her deed for the property was placed on record immediately after purchase, and was on record before any proceedings were had for the opening of said avenue; that she had no notice of any of the proceedings in this cause from the inception until suit was brought against herself, &c.</p> <p>The cause came on for hearing on the 12th of June 1879, and after testimony had been taken on both sides, the jury, under the direction of the court, rendered a verdict in favor of plaintiff against Margaret A. Watson for the amount claimed, $1645.66, subject to the opinion of the court in banc on the question of law reserved, viz., whether the defendant was concluded by the proceedings of the Quarter Sessions, at March Sessions of 1867. Afterwards the court entered judgment on the verdict, when defendant, Mrs. Watson, took this writ and alleged that the court erred in this action.</p> <p>Mrs. Watson was not a “ party” to the proceedings and she is not therefore concluded. No notice was ever given to her in any step of these proceedings, and as to her they were void: Pittsburgh v. Walter, 19 P. F. Smith 367. A municipal corporation must show affirmatively that all the requirements of a statute have been complied with : Dill. on Munic. Corp. 643, 649, 740; Lowell v. Wyman, 12 Cush. 273 ; Darlington v. Commonwealth, 5 Wright 68. The statute required notice to be given. The assessment is against the owner and not against the land, and is to be enforced against the parties named in the proceedings; first, out of the land named in the proceedings; and secondly, out of other property of parties to said proceedings.</p> <p>The charges are against the land and not against the owner. Mrs. Watson was the owner and she cannot question the action of the Court of Quarter Sessions.</p> <p>. The viewers were not required to name the owners, but only to designate the property assessed for contribution; nor are the viewers required to give notice to the owners or search them out. At the next or subsequent term after filing the report, the court is to hear such parties as choose to contest the same. What parties ? Those owning property assessed for benefits and those claiming damaged. After this the confirmation or decree of the court is to be final and conclusive upon all parties. What parties are here meant ? Those who choose to contest and those who do not — all parties interested. They had their day in court, one full term, to contest the assessment and show cause, if any they had, why their lands should not be charged for contribution; and that was in the Court of Quarter Sessions, which had exclusive jurisdiction.</p>

<p>Appeal from the Court of Common Pleas, No. 1, of Allegheny county: Of October and November Term 1879, No. 33.</p> <p>Appeal of Margaretta Nerpel from the decree of the court upon the exceptions filed to the special return of a sheriff’s sale of the real estate of John Nerpel, deceased.</p> <p>The property was sold under a mortgage, held by the Peoples’ Insurance Company, and after deducting costs, the sale realized $262.15, which the sheriff awarded to the insurance company, their mortgage being the first lien. The appellant, who was the widow of the mortgagor, John Nerpel, excepted to the sheriff’s return, claiming the balance as her exemption under the 5th section of the Act of April 14th 1851, Pamph. L. 612, which provides : “ The widow or the children of any decedent, dying within the Oommmonwealth, may retain either real or personal property belonging to said estate to the value of three hundred dollars, and the same shall not be sold but suffered to remain for the use of the widow and family; and it shall be the duty of the executor or administrator of such decedent to have the said property appraised in the same manner as is provided in the Act passed the 9th day of April, in the year 1849, entitled ‘An act to exempt property to the value of three hundred dollars from levy and sale on execution and distress for rent;’ Provided, that this section shall not affect or impair any liens for the purchase-money of such real estate, and the said appraisement, upon being signed and certified by the appraisers and approved by the Orphans’ Court, shall be filed among the records thereof.”</p> <p>The sheriff had been served with a certificate from the clerk of the Orphans’ Court of Allegheny county, that appellant had elected to take of her claim for $300, a small amount of personal property, of value of $32.05, and the balance, $267.95, out of the real estate upon which was the said mortgage, and for the sale of which the writ issued, and that the same had been duly appraised and set apart to her in .said property, the appraisement having been returned that the property could not be divided without injury to and spoiling the whole, and was confirmed by said Orphans’ Court.</p> <p>It was admitted that the mortgage of the insurance company was not a purchase-money lien.</p> <p>The court dismissed the exception and confirmed the sheriff’s return, when the widow took this appeal.</p> <p>Whatever character the mortgage may have assumed up to the time of foreclosure and sale, it then loses all character as a conveyance, the mortgagee no longer having any estate or title thereunder, and assumes the character of a lien, and as a lien only is distribution made to it of the proceeds of sale. Being thus regarded as a lien the widow is entitled to exemption thereout except it be a lien for purchase-money.</p> <p>Under the Act of 1851 the widow may retain either real or personal property belonging to the estate of the decedent, to the value of three hundred, dollars, but we contend there was no property in the mortgaged premises belonging either to the mortgagor or his estate, but the equity of redemption, out of which the widow could make her claim: Gangewere’s Appeal, 12 Casey 466.</p> <p>The Act of April 6th 1830 provides “that where the lien of a mortgage is or shall be prior to all other liens, except other mortgages, ground-rents and purchase-money due the Commonwealth, the lien of such mortgage shall not be destroyed or in any way affected by any sale made by virtue or authority of any writ of venditioni exponas,” and under this act it has been held that a mortgage vests the freehold in the mortgagee, leaving nothing in the mortgagor but the equity of redemption, and that a sale under a subsequent judgment passes only the equity of redemption: Garro v. Thompson, 7 Watts 419. If then, while living, the mortgagor had only the right to redeem, or the equity of redemption in the mortgaged premises, how can any more or greater interest pass into his estate at his death ?</p>

<p>In an action for damages for breach of covenant of a lea.se, it appeared that the lease had been altered in a material part, which enured to the benefit of the lessee. Held, that it should not have been admitted in evidence until the lessee gave some testimony explanatory of the alteration.</p>

2, of Allegheny county: Of October and November Term 1879, No. 219. Held: to see if the check would be presented, and in pursuance of that there was an agreement by which the plaintiff was to get the money then standing to the credit of Gray, if the check was not presented within a year; that they would pay over the $2200; and Mr. Oliver also says that he drew the bond, which is in evidence, with that…

2, of Allegheny county: Of October and November Term 1879, No. 67. Held: that where, by the terms of a lease, the tenant was bound to pay the taxes, and the tax collector refused to levy on his goods, he could not recover from the landlord.

<p>1. "W. went into possession of certain premises under H., and held over after the termination of the lease of H. Held, that under the provisions of the Act of March 21st 1772, the goods of W. were liable to distress for rent due by H., before as well as after the termination of the lease, unless such possession was continued under the authority of the owner of the property.</p> <p>2. It is not competent to prove an agent’s authority by the declarations of the agent. Nor are his acts done without the knowledge or authority of his principal, any evidence of his agency.</p>

<p>Certiorari to the Court of Quarter Sessions of Allegheny county: Of October and November Term 1879, No. 284.</p> <p>Appeal of Philip Reymer from the order of the court in the matter of opening Beech and Page streets, in the city of Allegheny.</p> <p>On the 28th of June 1876, the councils of the city of Allegheny adopted an ordinance as follows: “ An Ordinance authorizing the Opening of a Street from Allegheny Avenue to Fulton Street, of a width of fifty [50] feet.”</p> <p>Sect. 1. Be it ordained and enacted by the select and common councils of the city of Allegheny, and it is hereby enacted by authority of the same, that a street be and is hereby opened of a width of fifty [50] feet from Allegheny avenue to Eulton street, as per accompanying plan; said street from Allegheny avenue to Bidwell street to be called Beech street, and from Bidwell street to Eulton street to be called Page street, and that Robert H. Knox, John B. Ingham and Jonathan Gallagher, freeholders, be, and they are hereby appointed viewers to view the premises, appraise the damages and make assessments of benefits, as provided by Act of Assembly approved the 1st day of April 1870, entitled “An Act relative to Streets in the City of Allegheny.”</p> <p>Prior to this time, Page street was opened from Eulton street westwardly, and Beech street from Allegheny avenue eastwardly. The accompanying plan showed the new street extended on a line with Page street, and at Allegheny avenue the line was not exactly with Beech street, but showed an off-set.</p> <p>The viewers assessed the damages at about $30,000, and assessed benefits to a like amount on the contiguous property. They awarded to Reymer $14,500 as the damages suffered by him. Reymer appealed to the Quarter Sessions, and upon his demand an issue was certified to the Common Pleas, so that the amount of damages might be determined by a jury. The jury in said court assessed Reymer’s damages at $18,980, and a motion for a new trial having been overruled, judgment was entered against the city for that amount, and the record was certified back to the Quarter Sessions. On March 23d 1878, upon the petition of Reymer, viewers were appointed by the Quarter Séssions “ to appraise and assess the damages caused by the opening of Beech and Page streets, so far as the same have not been ascertained by jury, on the issue formed and tried in the Court of Common Pleas, and to assess the amounts so ascertained and found by jury as aforesaid, upon property benefited, and make a report to this court in accordance with law.”</p> <p>The report of these viewers fixed the entire damages by the opening of the street at $32,179, including for P. Reymer $18,980, and assessed benefits to the amount of $27,438.50, and reported that they had not found property benefited to the extent of the damages, there being a deficit of $4740.50.</p> <p>When Reymer appealed to the Quarter Sessions, a number of property holders against whom benefits had been assessed also appealed from the action of councils to the Quarter Sessions, and when the report of viewers was returned to that court, as set forth above, these property owners moved the court to quash the proceedings, for the following among other reasons : 1. The ordinance purports to authorize the opening of a single street from Allegheny avenue to Eulton street; while as a matter of fact it provides for the extension of Beech street from Allegheny avenue to Bidwell street, thus providing by a single ordinance and one board of viewers, for the extension of two entirely distinct streets located many hundred feet distant from each other. 2. The assessments of benefits and appraisements of damages upon the proposed extension of these two distinct streets has been made without distinction as to how much is for the one street and how much is for the other. 3. The costs and damages necessarily attending the proposed improvements greatly exceed th.e benefits which are likely to result therefrom; thus making the improvements impossible without imposing illegal assessments upon property not benefited nor likely to be benefited thereby.</p> <p>The Court of Quarter Sessions entered a decree that “ the whole of the proceedings in this case are quashed and set aside.” Erom this decree Reymer took this appeal.</p> <p>The powers of the city of Allegheny in opening streets are found in the Act of April 1st 1870, Pamph. L. 751. The law does not authorize the Quarter Sessions to review the question of damages, as fixed by the jury to which it had been referred, or set aside the verdict which the Common Pleas had refused to disturb; nor can it indirectly accomplish the same purpose by quashing the proceedings in which the verdict was obtained. After an award has been made and confirmed, there is no authority to discontinue the proceedings: Beekman Street, New York, 20 Johns. 269; Dover Street, New York, 18 Id. 506; Hawkins v. Rochester, 1 Wend. 53; New York v. Mapes et al., 6 Johns. Ch. 46; People v. Westchester, 4 Barb. 64; People v. Syracuse, 20 How. Pr. 491; Higgins v. Chicago, 18 Ill. 280; Water Commissioners, Jersey City, 31 N. J. 72; State v. Keokuk, 9 Iowa 438.</p> <p>The damages found and confirmed, determine the right of the landowner thereto just as completely as any other judgment: Neal v. P. & C. Railroad Co., 7 Casey 19; Darlington v. United States, 1 Norris 382; Philadelphia v. Miskey, 18 P. F. Smith 49; Williams v. Pittsburgh, 30 Id. 71.</p> <p>The verdict and judgment in the Common Pleas were of binding force, and the Quarter Sessions had no right to disregard or nullify them by quashing the proceedings. Said court had no control over the judgment other than to provide for its payment by appointing viewers to assess benefits on other property. Under the order of court quashing the proceedings, the ordinance locating the street remains unrepealed, and proceedings to open may be commenced again at any time the councils see proper. The appellant, instead of being an owner in fee-simple of the premises, is a tenant at will of the city. He is deprived of the power to sell, for the reason that he cannot convey the property, but only a claim for damages. He cannot improve, for the reason that under the decision in the matter of the District of Pittsburgh, 2 W. & S. 320, and Forbes Street, 20 P. F. Smith 125, he would not be entitled to damages for improvements put upon the property after the street was located.</p> <p>The court quashed these proceedings under the authority conferred by the Act of April 1st 1870 and its supplement of May 12th 1871. The city does not become the owner until payment be made, and therein this case differs from that of Philadelphia v. Miskey, 18 P. F. Smith 49, and also from cases where property is taken for railroad purposes. Under this and similar acts, a proceeding to condemn real estate for public purposes may be abandoned at any time after the damages are assessed and before final confirmation: Chicago v. Barbian, 80 Ill. 482; Graff v. The Mayor, &c., 10 Md. 551; State v. Graves, 19 Id. 370; Matter of Military Parade Ground, 60 N. Y. 319; Merrick v. Baltimore, 43 Md. 219; Farmer v. Hooskett, 8 Foster (N. H.) 244; Bloomington v. Miller, 84 Ill. 621; Mabon v. Halstead, 39 N. J. Law 640; Dillon on Mun. Corp., sect. 473; Mill on Eminent Domain, sect. 311.</p> <p>The proceeding merely fixes the amount to be paid before the property can be'taken; Bloomington v. Miller, 84 Ill. 621; Mabon v. Halstead, supra.</p> <p>The owners of the land have no vested interest in the verdict of a jury: Baltimore Railroad Co. v. Nesbit, 10 How. 395; Easley v. Elliott, 43 Mo. 288; Merrick v. Baltimore, 43 Md. 219.</p> <p>Then, if no rights vested in Reymer, his argument that the court could not quash the proceedings loses its force. The court has power to take such action in the premises as they may think right and proper, and may quash the proceedings at any stage; and this discretion in the court cannot be reviewed on a certiorari: Fritz’s Appeal, 3 Harris 397. The appellant remains in possession of his property and is not injured.</p> <p>By reference to the Act 1st April 1870, “relative to streets in the city of Allegheny,” and the supplement thereto, approved May 12th 1871, it will clearly appear that after an ordinance has been enacted fixing the location of a street, and viewers have made report to councils of “ all their action in the performance of their duties as viewers,” the councils are expressly empowered to do either one of two things, viz.: 1. To send back the report of viewers for further action; or 2. To quash the proceedings. It will appear with equal clearness that in case of appeal to the Quarter Sessions, “ all the papers and proceedings in the case” are removed into that court, and all power over the proceedings which belonged to councils before appeal is transferred to court by means of the appeal, and further power is conferred upon the court, viz.: 1. To take such action in the premises as they may think right and proper (which includes the hearing of testimony through a commissioner or otherwise); and 2. To appoint new viewers, with power, when they have reported, to modify, correct and approve their report, or to quash the proceedings.</p> <p>A clear distinction is preserved throughout the acts between the report of viewers, which may be approved, modified, &c., and the proceedings, which may be quashed — the latter manifestly meaning all proceedings from first to last.</p> <p>The ascertainment of any particular person’s damage by means of an issue to the Common Pleas, is merely an incident to the general proceeding, just as an issue from the Orphans’ Court or a court of chancery is an incident to the proceeding in which the disputed fact arose. The judgment of the court to which the issue is sent for trial is not a judgment for execution by that court, but is rather the final sentence of that court upon the matter confided to it to determine, viz.: the damage to the property proposed to be taken. When the amount of damage has been finally ascertained, the matter goes back to the court having jurisdiction of the proceeding out of which the collateral issue arose ;• but it does not go back, as suggested by appellant’s counsel, with a mandate “ to provide for payment of the damages awarded;” on the contrary, it goes back simply as an ascertained fact, to be used by the court having jurisdiction of the proceeding, in such manner as it may think “ right and proper,” in the course of its further proceedings.</p> <p>This proceeding was not to open a new street, but to extend two old streets, one in an easterly and another in a westerly direction, so as to meet, and causing an offset at the place of meeting, and an appraisement of damages, without distinction as to the two streets, was without authority of law.</p> <p>who were assessed with benefits by the viewers appointed by the court, but not by those appointed by councils, contended that assessments, without notice to the party assessed, was such an irregularity as would justify the court to set aside the report of viewers and quash the whole proceedings.</p>

<p>The parties to several suits in equity agreed in writing to refer to three masters the controversies involved in said suits, and all collateral questions the decision of which might be necessary to the determination of said suits and the reports of said masters were to be “ without exception or appeal,” and such agreement was by consent made an order of court in the suits. Held, that one of the parties to said agreement could not revoke his submission, especially where the debtors in the awards were to have the privilege of paying in instalments upon time. Held, further, that under such circumstances an appeal will be quashed and the Supreme Court will not consider the reasons assigned.</p>

<p>1. Where a physician or surgeon takes the charge of a patient, he assumes an implied, obligation to treat the case with reasonable diligence, carefulness and skill.</p> <p>2. The measure of professional skill which a physician is bound to exercise does not depend on whether or not he refused the proffered assistance of other medical men.</p> <p>3. It is the duty of the patient to submit to the treatment prescribed, and to follow the directions given, provided they be such as a physician of ordinary skill would adopt or sanction.</p> <p>4. If the contributory negligence of the patient united in producing the injuries complained of, the physician is not liable in damages therefor, and this rule applies to unnecessary pain and protracted illness as well as to a permanent deformity of a limb.</p> <p>5. If the parents of the patient, who also were in charge of and nursed him did not obey the directions of the physician in regard to his treatment and care, and thereby contributed to the injuries, the patient cannot recover</p>

<p>Error to the Court of Common Pleas of Venango county: Of October and November Term 1878, No. 65.</p> <p>Case by Lucien H. Culver against The Reno Real Estate Company and C. V. Culver.</p> <p>The Reno Real Estate Company was incorporated under the provisions of the Act of 21st April 1854, authorizing joint owners, tenants in common and joint tenants of mineral lands to organize corporations, and under the provisions of the Acts of 3d April 1872, Pamph. L. 37, and 28th April 1873, Pamph. L. 79, issued first preferred stock to the amount of $500,000, and in the issue thereof provided that it should at all times be bound to apply any funds remaining in the treasury of the company, or resulting from the sales of real estate, to the redemption at par of any of that stock upon the demand of the holder thereof. The principal business of the company was producing and selling oil, and it was so engaged on the 24th of September 1873, when it and C. Y. Culver entered into a contract with the plaintiff, Lucien H. Culver, in which the following facts were recited, to wit:—</p> <p>“ C. Y. Culver, being the holder of more than twenty-five thousand dollars of the first preferred stock of The Reno Real Estate Company, and by virtue of its terms being entitled to demand payment of the same out of any moneys remaining in the treasury of the company; but it being convenient for their operations that such stock should not now be presented and' paid as aforesaid, and C. V. Culver requiring for his own use a large amount; therefore, for the purpose of obviating the necessity on the part of O. V. Culver of demanding from The Reno Real Estate Company present payment of said first preferred stock, the said Lucien H. Culver has, at the joint request of the said C. Y. Culver and of The Reno Real Estate Company, agreed to loan to the said O. Y. Culver the sum of twenty thousand dollars ($20,000), for which the said C. Y. Culver has executed his promissory note bearing even date herewith, and being due the first day of February 1871, and has transferred to the said Lucien H. Culver, as collateral security therefor, first preferred stock of The Reno Real Estate Company to the amount of twenty-five thousand dollars ($25,000), at its par value.”</p> <p>The contract provided that, as inducement for making the loan, and in consideration of the same, the plaintiff might at any time before maturity of the note elect to receive payment of the same in oil, at the market price at the time of such election and place of delivery, and thereupon the said note should be liquidated and cancelled, and C. Y. Culver and The. Reno Real Estate Company should thereupon be jointly and severally bound to deliver to the plain'tiff the number of barrels of oil into which the amount of the note should be so liquidated. It was further provided that The Reno Real Estate Company should not be bound to hold in stock any oil to meet the demand of the plaintiff, but that they should be bound to deliver all the oil they might have on hand at the time of the demand, and thereafter all their production, as fast as the same should be produced until the full amount should be delivered, and that from time to time, as any payments should be made on the note or deliveries of oil- be made under the contract, proportionate amounts of the stock collateral should be surrendered. And it was agreed between C. Y. Culver and The Reno Real Estate Company that in case the company should furnish any oil to the plaintiff pursuant to the contract, it should be entitled to receive first preferred stock from the plaintiff, the par value of which should equal the value of the. oil so delivered.</p> <p>On the 8th of November 1873, the plaintiff elected to receive payment of the note in oil, and thereupon a supplemental agreement was executed whereby the note was “liquidated and can-celled, and in lieu thereof C. Y. Culver and The Reno Real Estate Company, each for themselves, agree to deliver to the said Lucien H. Culver, according to the terms of said contract, twenty-two thousand two hundred and twenty-two barrels of merchantable crude oil.”</p> <p>In the following March, 1874, The Reno Real Estate Company declared a dividend of 5 cent, upon its preferred stock, and the plaintiff demanded the amount due him, $1250, on the stock held by him as collateral. His right to receive it was questioned, and after some discussion the matter was settled, by the company agreeing to deliver to him twelve hundred barrels of oil on the contract within a short time in lieu of, the cash*. a.nd he giving them an acquittance against the dividend.</p> <p>No part <?f the oil having been delivered, not even the twelve hundred barrels which were to have been delivered in lieu of the dividend, the parties entered into a new contract on the 13th of March 1875, by which, after reciting the obligation of the defendants to deliver to the plaintiff twenty-two thousand two hundred and twenty-two barrels of oil, and that the plaintiff held two hundred and fifty shares of the first preferred stock of The Reno Real Estate Company (par value $>25,000) as collateral security for such obligation, the plaintiff surrendered the stock collateral, and it was agreed, among other things :</p> <p>1. That the defendants should deliver to plaintiff five thousand barrels of oil on or before the 30th of April 1875.</p> <p>2. That if such delivery should be made plaintiff should not be entitled to demand any further deliveries until the 15th of June 1875, but that at any time thereafter he might call upon the defendants for the whole or any part of the remainder of the oil due him, and thereupon the defendants should either make deliveries 6r, at their option, “ liquidate the same in money at the highest price which such oil or pipe-line certificates shall bear on the day when such call was made, and execute to him the promissory note of The Reno Real Estate Company for the amount of such liquidation payable thirty days thereafter.”</p> <p>As collateral security for the performance of this contract the defendants transferred to the plaintiff one thousand shares of the preferred stock of another company, viz.: The Reno Company, not Reno Real Estate Company.</p> <p>The certificate of the two hundred and fifty shares of first preferred stock of The Reno Real Estate Company was assigned by the plaintiff to that company: plaintiff testified that he surrendered the stock to the company, delivering the certificate with his assignment endorsed upon it, to the president of the company, while the defendant, C. V. Culver, testified that the surrender was made to him.</p> <p>There were frequent interviews between the parties about the delivery of the oil, and none having been delivered, plaintiff made formal demand therefor on the 16th of June 1876, which not having been complied with this suit was brought.</p> <p>At the trial before Trunkey, P. J., the plaintiff submitted the following point, to which is appended the answer of the court.</p> <p>“ If the contract of September 24th 1873, was fully executed by and on behalf of L. H. Culver, and The Reno Real Estate Company had reaped all the advantages to it contemjfiated in and by said contracts, and afterwards, to wit, in March 1874, the said L. H. Culver released the said company from the payment of a dividend amounting to $1250 on the $25,000 of preferred stock mentioned in said contract, upon the said company agreeing to deliver twelve hundred barrels of oil on account of said contract within a short time thereafter, and afterwards, to wit, at the making of the contract of March 13th 1875,. the said L. H. Culver in part consideration thereof, assigned and surrendered to the said company the said $25,000 of preferred stock, such several transactions constituted a good consideration for the said contract of March 13th 1875, and it is too late now for said company to deny the legality thereof.”</p> <p>Ans. “ Refused, for in its application to the facts of the case the plaintiff is not entitled to recover as against The Reno Real Estate Company.”</p> <p>The court affirmed the following point of defendant:</p> <p>“ The agreement of March 13th 1875, taken in connection with the agreements of November 8th 1873, and of September 24th 1873, to which it was supplemental, was, so far as The Reno Real Estate Company was concerned, an attempt to guarantee or secure the individual indebtedness of C. V. Culver to L. H. Culver, and was beyond the power of the directors to make, and was not binding on said company.”</p> <p>The court also charged:</p> <p>“ The amount of claim for damages against C. Y. Culver you will determine from the evidence. It would be the actual value of the oil at the time it was demanded, with interest thereon from that day to the present time, which you will calculate. The gross amount will be ydur verdict. Remember there was a credit of $5000. The jury will remember that as the case is submitted to you, all you have to do is to fix the amount. One party claims the price was at a date they claimed the demand Was made, and the other party the price of oil at a different date when they claim the demand was made. Your verdict will be against C. Y. Culver. All you need say is how much you find.” *</p> <p>The verdict was, “ the jury find for plaintiff, and against’ O. Y. Culver in the sum of $35,012.79, and they find verdict for The Reno Real Estate Company.”</p> <p>The plaintiff took this writ and alleged that the court erred in their answer to the above points. This case was twice argued before the Supreme Court.</p> <p>The first preferred stock was a legal obligation, and when the company issued to C. Y. Culver two hundred and fifty shares of the par value of $100 each, it contracted, with the express .sanction of the law, to pay to him upon demand every dollar it should have in its treasury up to $25,000. The plain import of the recital in the contract of 24th September 1873, is that the company then had in its treasury not less than $20,000.</p> <p>Certainly it would have been within the letter and spirit of the law, and of the contract made in pursuance of it, to have redeemed the stock — paid to the holder the par value thereof. And how does it transcend the powers of a corporation to agree to do 'in futuro what it may and is threatened otherwise to be obliged to do in prcesenti ?</p> <p>Now, while it is true that so far as the plaintiff was concerned, security for the loan was the principal object of the contract, The Reno Real Estate Company was no more a surety than it would have been if the stock had been pledged without a contract on his part. A present obligation to redeem the stock was admitted, in respect to which the company was a principal obligor, and it simply undertook to discharge that obligation 'by delivery of oil if the plaintiff should elect to receive such delivery within a specified time.</p> <p>The company reaped all the advantages which it was contemplated would spring from the several contracts, and it is too late now to assume that the contracts were ultra vires: Oil Creek and Allegheny Valley Railroad Co. v. Pennsylvania Transportation Co., 2 Norris 160.</p> <p>If there is any import in the recital in the contract of 24th September 1873, that the ’company had $20,000 in its treasury, it is just as plainly imported that it was needed to pay debts, and for such future operations of the company as were necessary to secure net earnings and pay dividends. To deplete its treasury at the demand of its vice-president for the redemption of his stock, would be gross injustice to creditors and other stockholders, and a pledge of future earnings for the same purpose would be equally in violation of law.</p> <p>An agreement by a corporation to pay annual premiums to preferred stockholders, without reference to ability to pay them from earnings, is void as opposed to public policy: Lockhart v. Van Alstyne, 14 Am. Law Reg. (N. S.) 180.</p> <p>Payments of interest on preferred stock can only be made out of profits bona fide earned, for a corporation has no power to contract for the payment of interest on dividends on its capital stock in excess of the earnings of the company: P. & C. Railroad Co. v. Allegheny County, 13 P. F. Smith 126.</p> <p>The agreement if it was, as plaintiff claims, one by which the stock of O. V. Culver was to be redeemed by the application of the future production of the company, was clearly illegal and void. It was equally so, if, as we claim, it was a contract to guarantee a loan to C. V. Culver.</p> <p>This company had no power conferred upon it by any act to become surety for the debt of another. If it needed money to meet legitimate demands it was empowered to borrow as provided by the acts creating it.</p> <p>We claim this contract could not be held valid, because the superior equities are in favor of the stockholders and not the plaintiff. Whether all contracts ultra vires are against the policy of the law and void, matters not. This contract undoubtedly is. A contract of suretyship by a corporation “is a lesion in its very nature.” AfortioH one made by and to secure the debt of a director. It is certainly as much against the policy of the law for directors to'bind a company by contract to pay the debt of one of their number, as it is for a trustee to purchase at his own sale.</p>

<p>1. Neither by set-off nor original action can interest, over the legal rate, paid to a national bank, be recovered except by way of penalty as prescribed by the Act of Congress of June 3d 1864.</p> <p>2. The courts of this state have jurisdiction to recover said penalty under the provisions of the national statute above referred to. Bletz v. The Columbia National Bank, 6 Norris 87, followed.</p> <p>3. There are no state banks of issue in Pennsylvania authorized to take more than six per cent, interest, and national banks cannot therefore claim Euch privilege.</p> <p>4. Where in an action to recover usurious interest paid it appears that the plaintiff was the beneficial owner of the notes discounted, it cannot be shown that the other joint maker claimed the right to recover said usurious interest and had brought suit therefor in another court.</p>

69. Assumpsit by H. Wetter, to use of W. C. Howe, against J. B. Watson and C. C. Brosius, on the following promissory note: “$1875. Clarion, Pa., June 18th 1877. Six months after date we promise to pay to the order of H. Wetter $1875, at the First National Bank of Clarion, Pa., without defalcation for value received. If not paid at maturity waiving exemption, inquisition appeals, without stay of execution, and with five per cent, attorney’s commission for collection, fl 7393.

<p>Error to tbe Court of Common Pleas of Drie county: Of October and November Term 1879, No. 223.</p> <p>Assumpsit by Elvira J. Greene, to the use of Orange Noble and L. H. Hall, against The Lycoming Fire Insurance Company.</p> <p>The material facts will be found in the opinion of this court.</p> <p>If the company made Thompson their agent, clothed him with the power to take applications, receive and deliver policies, and receive premiums, and he has exceeded his authority by certifying to the sheriff that he had insured this house, when in fact he had not, and thereby Noble & Hall have suffered a loss, the company is estopped from denying that the house was insured, and is liable to Noble & Hall on the policy: Bigelow on Estoppel 475.</p> <p>The same rules apply to insurance companies as apply in the case of individuals, and a person who is clothed with power to act for them at' all is clothed with authority to bind them as to all matters within the scope of his real or apparent authority: Bodine v. Ins. Co., 51 N. Y. 117; Norwich Co. v. Wright, 13 Wall. 122; Clark v. Ins. Co., 8 How. 235; Gloucester Man. Co. v. Ins. Co., 5 Gray 497; Ins. Co. v. Sortwell, 8 Allen 217.</p> <p>A declaration made by a duly authorized officer operates as an estoppel: Mentz v. Lancaster Fire Ins. Co., 29 P. F. Smith 477. The policy was not in force until the premium was actually paid: Marland v. Royal Ins. Co., 21 P. F. Smith 393; Shaffer v. Ins. Co., 8 Norris 296.</p> <p>An indefinite promise to give time by the agent cannot be construed into a contract to bind the company. An agent cannot bind his principal by a declaration that he has done an act he had no authority to do. It was incumbent on plaintiff to show the agent had authority to bind the company: Hays v. Lynn, 7 Watts 525; Ins. Co. v. Shultz, 1 Norris 51. In Mentz v. Ins. Co., supra, cited by plaintiff in error, the agent had authority to make the endorsement which was required to be endorsed on the policy.</p>

<p>1. Where an information was for seduction under promise of marriage, it is not improper to include in the indictment therefor a count_for fornication and bastardy.</p> <p>2. In an indictment for a criminal offence the court charged the jury, “ the only safe course for you to pursue, as to the law regarding offences' which you may have given you in charge, is to receive your instructions from the court, for the reason you are not supposed to be learned in the law, and if you should commit an error therein, or counsel should be mistaken in stating the law to you, and you, relying upon their version or your own ideas, in either case should you commit an error, there is no remedy.” Held, that this was not error. The court had an undoubted right to instruct the jury as to the law, and to warn them, as they did, against finding contrary to it.</p>

<p>1. In an action for slander, under the plea of “not guilty,” the defendant may show in mitigation of damages the general bad character of the plaintiff for the particular thing with which he is charged.</p> <p>2. In an action for slander, under the pleas of the general issue and justification, the defendant proposed to ask the witness, “ what is the general repxxtation of the plaintiff as to being a thief.” Upon objection the court-ruled that the question should have been, “ what is the general reputation of the plaintiff for honesty.” Held, that this was error and that the defendant was entitled to put the question in the form proposed by him.</p> <p>3. Conroe v. Conroe, 11 Wright 198, and Moyer v. Moyer, 13 Id. 210, followed.</p>

239. Scire facias sur mechanic’s lien issued by A. T. Loomis against Elizabeth Fry and George E. Fry. The lien as filed was as follows:— “In this case the land hereinafter described belongs to the wife, Elizabeth Fry, and she contracted for the construction of the building, and contracted for the material and became personally liable for the material furnished, as is hereinafter stated.

350. In Equity. Bill in equity filed by William P. Rindernecht against the Mayor and Select and Common Councils of the city of Erie, and the bill of William L. Scott and others against the city of Erie, which by agreement of the parties was made supplemental to the above bill, to restrain the defendants from paying over any money in pursuance of a contract for the erection of a market-house in said city of Erie.

331. Assumpsit by the county of Forest against the Overseers of the Poor of Harmony township.

27. Scire facias quare executionem non on a judgment by Daniel McGregor against W. S. Craft and Sarah Dowling, administratrix of Hugh Dowling, deceased. The original judgment was entered by the prothonotary on a judgment-note signed by Craft, who was the principal debtor, and Dowling, who was surety, for $175, payable ten months from date.

26. Trover and conversion by J. H. Bowman, to the use of J. W. Bowman, against A. A. Shaw. Shaw, the defendant, owned a farm in Erie county, and on March 23d 1873 leased it to J. H. Bowman for a term of two years from April 1st 1873. The lease contained the following condition:— “ The party of the first part furnishes one-half of all seed, except grass seed, and receives one-half the proceeds; and further, he pays all taxes on Said farm, except road tax.

<p>1. Where goods of a stranger to an execution are seized and held under it, they are in the custody of the law, and while so held the owner cannot take possession nor maintain replevin.</p> <p>2. The law does not attribute constructive possession to the owner of property which it has in its own control by means of an officer. A mere purchaser at a sale by the officer, who receives from him immediate possession, is not responsible in trespass. His purchase does not of itself make him a participant in the wrongful seizure, and he is not made a trespasser by relation.</p>

<p>The Road Commissioners of Erie County have not, under the provisions of the General Road Law, or the special Acts of Assembly relating to Erie county, the authority to re-locate an old road, and if in the pursuit of such purpose they remove a fence, they are liable to the owner thereof in trespass.</p>

<p>Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1879, No. 272.</p> <p>Trespass vi et armis by George Smith against E. Crisman.</p> <p>O. L. Wolf, being embarrassed, on the 9th day of February, 1872, his real estate was sold by the sheriff of Jefferson county, and purchased by John Wilson, of Pittsburgh, all of his personal property having been sold prior to that date, which real estate was subsequently sold by said Wilson to George Smith, O. L. Wolf and family remaining on the land and farming, &c., without lease, at the will o.f and under the instructions of Smith, the owner. Smith subsequently became the owner of certain personal property, to wit: one cow, four hogs, two pair bob sleds, one saddle, one set of harness, &c.; also, one hemlock raft. On the 22d day of October 1877, F. Crisman, sheriff of Jefferson county, by virtue of a writ of fi. fa., sold said articles as the property of O. L. Wolf, and for which this action of trespass was brought by Smith against Crisman.</p> <p>It appeared that Wolf being indebted to one Martin, in order to pay him agreed to take out a raft for Martin, Smith becoming-security for Wolf. The timber was taken out and Martin’s mark placed thereon and it was hauled to and rafted in a certain dam, when Martin refused to take the raft and proceeded to collect from Smith the amount due from Wolf. Wolf then asked Smith to take the raft, which the latter agreed to do, and ha-d his own name marked thereon, and ran it to the mouth of Canoe creek, where it was frozen up and laid until the following spring. Smith then employed Wolf to run the raft down the river to Perryville, where it was tied up until October, when it was sold by Crisman, as set forth above.</p> <p>At the trial, the plaintiff submitted the following points, all of which the court refused:— •</p> <p>1. That upon sale of personal property only such delivery is required as the nature of the property is susceptible of.</p> <p>2. That if the jui’y believe that George Smith took the raft for a debt .due by Wolf to Martin, upon which Smith was bail, and had paid, or was to pay, and return the overplus, if any, to Wolf, after payment of the amount due Martin and expenses, and in pursuance of such an arrangement, had his name marked on the raft, put his cable on the raft, furnished the money for running the same, and paid the hands, he is entitled to recover.</p> <p>8. That possession of personal property is not absolute evidence of title. Personal property may be sold and delivered, and the possession be joint; it is a matter of fact for the jury, from the evidence, to say who is the owner of the property.</p> <p>The defendant submitted the following points, to which are appended the answers of the court: — •</p> <p>1. That under the evidence in this case, there was no such delivery of possession, and retention of the same, by George Smith, the plaintiff, as would be sufficient to constitute a valid sale, as to creditors, and the alleged sale to Smith was a fraud in law, regardless of the intent of the parties, and the verdict of the jury should be for the defendant.</p> <p>Ans. “ Affirmed.”</p> <p>2. That under the evidence in this case the verdict of the jury should be for the defendant.</p> <p>Ans. “ Under the law of the case it is our duty to instruct you that the plaintiff cannot recover in this action.”</p> <p>Verdict for defendant accordingly, when plaintiff took this writ, and alleged that the court erred in the answers to the above points,' and in taking the case from the jury, as there was such testimony as to the ownership and possession of the property as should have been left to the jury.</p> <p>The subject of a sale is not always capable of an actual delivery and then a constructive delivery will be sufficient, and in such cases it is only necessary that the vendee should assume control of the subject so as to reasonably indicate the change of ownership: McKibbin v. Martin, 14 P. F. Smith 352. Whether on a sale of personal property there is such a delivery and change of possession as the nature of the property is capable of, is properly left to the jury as a question of fact: Chase v. Ralston, 6 Casey 539 ; Forsyth v. Matthews, 2 Harris 100; Loucheim Bros. v. Henszey, 27 P. F. Smith 308; Ehrisman v. Roberts, 18 Id. 308.</p> <p>There never was a sale or delivery of possession.</p>

<p>1. A pauper having a legal settlement in the borough of Clarion became a charge on the county of Blair. ' He was duly removed to and accepted by the borough of Clarion, and the order of removal was served on the overseers of the poor of said borough, and no appeal was taken therefrom. A bill of expenses incurred by the county of Blair for the relief and removal of said pauper was duly proved and demand for its payment made upon the overseers of said borough. They denied their liability and refused to pay, and a rule to show cause why they should not pay granted by the Quarter Sessions of Clarion county was, after hearing, discharged. Held, that this was error, and that under the Acts of June 13th 1836, and April 15th 1867, the accepting district was liable for reasonable costs and charges, and the manner of enforcing that liability is in and through the Quarter Sessions.</p> <p>2. Renovo Overseers v. Half-Moon Overseers, 28 P. F. Smith 301, distinguished.</p>

<p>1. For reasons of public policy equity will not decree specific performance of a contract to sell certain shares of stock of a bank where such shares are sought for to control the bank.</p> <p>2. F. in writing agreed to sell and G. to purchase fifteen shares of the stock of a national bank. G. and his friends owned sufficient stock to give them, with these fifteen shares, the control of the bank. The avowed object of the proposed purchase of the fifteen shares was to obtain control 0£ bank. j'- refused to deliver the stock, when G. filed a bill in equity to compel its delivery. Eeld, that for reasons of public policy equity will not enforce such a contract by decree for specific performance.</p> <p>3. McGowin v. Remington, 2 Jones 61, distinguished.</p>

<p>Error to the Court of Common Pleas of Fríe county: Of October and November Term 1879, No. 36.</p> <p>Feigned issue wherein David Beaty was plaintiff and Enoch Bordwell defendant, to ascertain the amount due on a judgment-note of defendant’s for $3500. The material facts will be found in the Opinion .of this court. Yerdict for plaintiff for $1545.50, and after judgment the plaintiff took this writ and alleged that the court erred:—</p> <p>1. In charging: “ There is no parol evidence from which a jury should find, that any part of the contract agreed upon by the parties prior to the written agreement was omitted by the scrivener, Mr. Marshall, in writing the contract of • 28th August 1871. You will therefore take the written agreement of that date as embodying their agreement down to that time. Although the note is for $3500, yet, when construed as part of the contract, we instruct you that the plaintiff, in the absence of testimony to the contrary, liad no legal right to receive a note from the defendant in excess of $2500.”</p> <p>2. In charging: “One tenant in common cannot recover against his co-tenant for ordinary repairs or improvements without the consent of the latter, but he may for those that were absolutely necessary for the enjoyment of the property. As to this point of the case, your first question is, did the plaintiff agree to pay his proportion, one-half of the costs, of the improvements claimed by the defendant ? If he did not so agree, then was the stumping of the ground absolutely necessary for the reasonable enjoyment of the eighty acres.”</p> <p>3. In charging: “You start out in your investigations with the plaintiff entitled to recover $2500 from the defendant.”</p> <p>4. In charging: “ Again the defendant claims he sold a piece of of land for $135, $35 of which he paid the plaintiff. Whatever amount he paid the plaintiff in excess of the amount he should have paid him according to their article of agreement, he is entitled to a credit for. The amount he should have received from this source, you must determine from the proportion in which they were to pay the $7000 of the bid.”</p> <p>5. In charging: “ If you find the defendant purchased and paid for the stump-machine at the request or with the subsequent ratification of the plaintiff, deduct one-half the cost from the note.”</p> <p>6. In charging: “Any payments or credits the defendant is entitled to, not enumerated by us, you must remember.”</p> <p>The court confounds the liability of tenants in common for repairs and for improvements. As applied to repairs of houses and mills, the doctrine laid down is correct: Dech’s Appeal, 7 P. F. Smith 467. But this does not apply to woodland or arable land: Gregg v. Patterson, 9 W. & S. 209; 4 Kent’s Com. 370. As to improvements, the doctrine is exactly the reverse: Crest v. Jack, 3 Watts 238; Gregg v. Patterson, 9 W. & S. 197; Dech’s Appeal, 7 P. F. Smith 472; Story’s Equity, sect. 1235. It would seem, on reason and authority well settled, that one tenant in common cannot be held liable for any improvements made by his co-tenant without his authority or consent, and yet in this case the court charged that he could be so held if the improvements were “ absolutely necessary for the enjoyment of the property,” and submitted to the jury the inquiry whether the stumping claimed for was necessary for the reasonable enjoyment of the eighty acres, an inquiry which a jui’y of farmers would naturally and almost inevitably answer in the affirmative. In this there was palpable error.</p> <p>The error in the sixth specification is the use of the word “credits,” and is a serious one. It opened the door for the allowance of any matters of set-off sworn to by defendant. It relieved the jury from the obligation to find a direct application as payments. To thus leave a jury to hunt up credits in addition to payments, on a judgment ooened on the single plea of payment, is unprecedented.</p>

<p>1. To maintain an action of trespass vi et armis against an employer, it must appear that the particular injury or act of trespass of the employee was done by his command or with his assent.</p> <p>2. Philadelphia, Germantown and Norristown Railroad Co. v. Wilt, 4 Whart. 142; Yerger et ux. v. Warren, 7 Casey 319, followed.</p>

<p>1. Where a scire facias issued to revivo a judgment within five years from the entry of the judgment, the lien thereof continues for five years from the issue of the scire facias, although no service was had on either the defendant or terre-tenant.</p> <p>2. An alias scire facias may he served on the terre-tenant and the judgment revived against him at any time-within five years from the date of the issue of the first scire facias.</p>

<p>Error to the Court of Common Pleas of Venango county: Of October and November Term 1879, No. 59.</p> <p>Trover and conversion, by John W. Haworth against L. L. Shat-tuck, for four oil certificates.</p> <p>The material facts were these:</p> <p>In the years 1876 and. 1877, Richard L. Irwin and Leander L. Shattuck were engaged in buying and selling petroleum for third persons, for a commission, and in taking charge of petroleum for other persons, to transact such business as might be necessary relative thereto, and among other things for the purpose of paying storage, called by the trade “freshening.” The actual oil was not in their possession, but it. was represented by accepted orders of pipe-line companies. In the language of the petroleum trade they were known as “ oil brokers.” On the 2d of February 1877, John W. Haworth delivered to Irwin, a United Pipe-Line accepted order calling for one thousand barrels of crude petroleum, and received a receipt for the same, signed by Irwin, in the firm-name of Shat-tuck & Irwin, specifying that the firm held the certificate for Ha-worth, and agreeing to deliver the same to him on demand upon the payment by Haworth of the storage that Shattuck & Irwin might advance for him. On the 27th of February 1877, Haworth delivered to Shattuck similar accepted orders for two thousand barrels of petroleum, in addition to the one thousand previously given, and received a similar receipt, signed by Shattuck, by the firm-name of Shattuck & Irwin. Irwin lived in Pleasantville, six miles from Titusville, and Shattuck lived in the latter place, and had the active management of the business. Irwin sent to his partner, Shattuck, the certificate for one thousand barrels, so that Shattuck had in his possession the three certificates, representing three thousand barrels of crude petroleum. On the 16th of June 1877, Haworth sent to Shattuck, at Titusville, in a letter, still another accepted order for one thousand barrels of petroleum, and in the letter instructed him to loan all the certificates he had in his hands for the purpose of saving fire loss and storage charges. By other letters Haworth had theretofore, instructed Shattuck to sell his certificates in the manner known in the jargon of the trade as “ spot,” and to make contracts for future delivery of the same amount of oil, so sold, known as “seller’s options.”</p> <p>Among other letters were the following:</p> <p>“ Pleasantville, Pa., June 14th.</p> <p>Major Shattuck:</p> <p>Buy me from three to five thousand options buyers the year any place from $2 to $2.10. Howard offered them yesterday less, and if spot should run up to $2 sell against them, or if it goes to 95, if you think it is going back, sell at 95; use your own judgment; but I think it is a good time to take some options, unless there is something new struck at Bullion, then it would be better to sell spot. If you get me some options, and spot should run up so you could cover even the 95, do the best you can, just as if you was doing for yourself, and no reflections.</p> <p>Yours respectfully,</p> <p>J. W. H.”</p> <p>“Pleasantville, Pa., June 16th.</p> <p>Major:</p> <p>I wish you would loan out whatever certificates you may have of mine, and also this one I send you. I am afraid of fire. Loan them subject to your call, if spot runs up a little I will sell them. I have not heard anything from you for a few days about options. Bumstead told me that they were offered at Oil City the day I told you to buy them at 8f and 10c. I wish you would try to get me some at $2.10, or thereabouts. Post me whenever you hear anything.</p> <p>J. H. W.”</p> <p>As the holders of the certificates were required to pay the storage charges and fire loss assessments made by the pipe-lines according to the system of general average, Haworth instructed them to loan the certificates for the purpose of avoiding the charges and assessments, which they accordingly did, taking as security for them the prevailing price in money at the time of the loan, and these moneys and all others realized' by them out of these transactions, which were chiefly managed by Shattuck, were by him placed in bank in his own name.</p> <p>On June 14th, in pursuance of the instructions of the letter of that date, Shattuck sold one of Haworth’s certificates as spot oil against outstanding options, at the same time selling some of his own in the same manner. What Haworth’s portion sold for was not specified, but it was included in $11,021 deposited by Shattuck on that date in the Exchange Bank. And following the instruction of the letter of June 16th, he loaned the remaining three certificates on June 20th, reserving as security for the loan, $4625. This money he deposited on June 21st in the Exchange Bank. These deposits were as usual in his own name. The bank failed, and on June 22d its doors were not opened, nor has it since resumed. On that day, Haworth demanded his oil, and in answer Shattuck informed him of the facts, and that the money was in the Exchange Bank. Subsequently, in answer to Haworth’s inquiries, Shattuck informed him that he had placed the money in bank to his own credit, and the oil also. - Thereupon Haworth sued the firm in trover to recover the certificates, and Irwin dying pending the suit, proceeded against Shattuck alone.</p> <p>At the trial the defendant offered to prove “that Irwin had an arrangement with the Pleasantville Bank for a credit there on account of this business, by which money was to be deposited there subject to check on account of the business of Shattuck & Irwin, and the circumstance the plaintiff relies upon, that the money was deposited to an overdrawn account, would amount to nothing, because they had money there at Pleasantville.”</p> <p>The court rejected the offer.</p> <p>“ The defendant offered to follow the .evidence already in, and in connection therewith, with evidence that said money was deposited in the Exchange Bank of Titusville, in his own name, according to the custom of trade and the course of business with the plaintiff, known to him, and in such transactions the plaintiff became and is indebted to him and the estate of his deceased copartner in about the sum of $500.”</p> <p>Plaintiff objected to so much of said offer as proposes to prove a custom of trade for brokers to deposit money of their principals in their own name.</p> <p>By the court: — We reject so much of the offer as includes the offer to' prove a custom of brokers to deposit money of their principals in their own name, especially as in this case it appears that the money — as appears by the testimony of the defendant — that the money he had deposited — the proceeds of the plaintiff’s oil, was deposited to his own credit to an overdrawn account.</p> <p>The plaintiff submitted the following point, which the court affirmed :—</p> <p>If the jury believe that Shattuck, acting as broker or agent for Haworth, took the certificates in controversy belonging to Haworth, and loaned or sold them without disclosing that they were not his own property, but dealing with them as his own, and deposited the money received for them to his own account in bank, the said account being at the same time overdrawn, this was a conversion of said certificates to defendant’s use, and he is liable to plaintiff for the value of them, as of the date of said conversion with interest.</p> <p>The defendant submitted the following points :</p> <p>1. If the jury believe from the evidence that the plaintiff, on or about June 16th 1877, instructed the defendant to loan three of the-oil certificates referred to in the declaration, and sell the other pursuant to instructions, and the defendant did loan and sell them in accordance with the custom of the trade, and received the sum of about $6525 as security for said loans and for said sale, which sum he deposited on the day of its receipt, to wit, June 21st 1877, in the Exchange Bank of Titusville, and the said Exchange Bank failed on the 21st day of June 1877, and did not open its doors for business on that day nor since, these facts did not constitute a conversion of said certificates by the defendant, and the plaintiff cannot recover in this action.</p> <p>2. If the jury find from the evidence that the defendant followed the instructions of the plaintiff and loaned and sold the oil certificates referred to in the declaration, and received money therefor, which he deposited in the Exchange Bank, this action cannot be sustained.</p> <p>3. If the jury believe from the evidence that for several months prior to June 22d 1877, the defendant had been buying, selling and loaning oil certificates for the plaintiff, and transacting the incidental business connected with these acts in his own name, and that this was known to the plaintiff; and that on or about the 21st day of June 1877, the defendant, in pursuance of instructions from the plaintiff, loaned a,nd sold the pipe-line oil certificates, and received the sum of about $6525 as security for said loan and for said sale, and deposited the same in the Exchange Bank of Titus-ville, and that on the day of said deposit defendant had an arrangement with said bank by which he had deposited collateral security with it, and that his checks were to be honored until notice from the bank to the contrary; and should also find that the Exchange Bank failed and closed its doors the next day after such deposit, and the defendant never received any part of the money he had deposited, and did not deposit it with the intention of paying his own debt, even though the account was overdrawn, and the collateral not sufficient to cover such overdraft, then there is no evidence of actual fraud, and the defendant’s discharge in bankruptcy is a complete bar to this action, and the verdict must be for the defendant.</p> <p>These three points the court answered as follows:—</p> <p>“ These points assume as proven facts and theories deduced from such facts, of which there is no sufficient evidence to submit to the jury, and the other statements therein contained, while true, do not contain the whole truth, as conceded by both parties from the evidence. The court declines to answer the above stated three points as requested.”</p> <p>In the general charge, the court, inter alia, charged:—</p> <p>“ But really, we will say to you that the developments in the case show Shattuck not to be a broker in any legitimate sense of that -word; he is a mere speculator. In this case he was not a broker in this transaction in any legitimate sense of the term. I do not know,what the other brokers in this Exchange are, whether they are entitled to the name of brokers or are mere speculators with their own money or the money of other persons, and cannot bring-themselves within any legitimate definition of brokers or claim any of the ordinary rights of brokers. * * *</p> <p>“ A broker, when he undertakes to act for another, ought to disclose the name of his principal, or disclose if he is acting in the capacity of a broker, agent or factor. * * *</p> <p>“We say to you, if you believe the evidence as detailed by witness, and in one sense of the word- there is not very much discre.paney between the testimony of the parties, except as to the authority; if you believe that evidence, Shattuck is guilty of conversion of this property to his own use. * * *</p> <p>“ One portion of the evidence, that tends to show that it was a conversion, and a fraudulent conversion in fact, was in taking the proceeds and paying his own debt with it to the Exchange Bank. * * *</p> <p>“ Now it is alleged on the part of the defence, that although this account was overdrawn $7000, he still had credit with the bank. It does not appear in evidence that Shattuck had the right to draw to an unlimited amount upon that bank, or rather to draw checks till the bank told him to stop. Hoag said they had collateral for his overdrafts, and he could get any collateral he had that exceeded his overdraft; but it nowhere appears, if the court understands the testimony, that he was authorized to overdraw any collaterals he had there. * * *</p> <p>“ Now it is also alleged that Mr. Shattuck was simply doing what was the custom of the trade, that he, not only did that, but that he was authorized by Haworth to sell or to loan. There is a letter in evidence of the 16th June 1877. It looks towards an authorization on the part of Haworth to loan. But it seems to have been an authorization to loan for Mr. Haworth, and if the defendant loans for himself or uses the proceeds for himself, it is still a conversion because he has not followed the instructions, and as to the failure of this hank, causing this loss or causing a failure upon the part of Shattuck to repay or to recompense Haworth his loss, or for the non-return or non-delivery of the oil certificates, we fail to see how that affects the question at all, because at the time the bank failed Shattuck was still overdrawn some $7000 and the collaterals were insufficient to pait.” * * *</p> <p>“ If you believe the evidence of Haworth and Merrick, sufficient demand was made to authorize the bringing of this suit.” * * *</p> <p>“ Now you will recollect Haworth and Merrick both testified. Haworth himself testified on the day of the failure of the bank he asked Shattuck for his oil certificates ; Shattuck put him off from time to time. He says he asked for them three times and when the news of the failure of the bank came Shattuck said he had loaned three thousand and one thousand still remained in the bank. I believe he afterwards told Merrick so. That is all, however, for you, and it tends to show the mala fides of this defendant. * * *</p> <p>“ We have it that he received about $2500 from the officers of the bank; whether to keep quiet or not we do, not know; he received $2500 as his share of the margin on the advance of oil after the overdraft had been paid. There was certainly then $2500 of the proceeds of the-plaintiff’s own oil that he received which he had failed to account for these oil certificates, enough, to say nothing of what he was to be accountable for, growing out of the transaction; after all these occurrences he receives $2500 which was the legitimate proceeds of Haworth’s loan.”</p> <p>Yerdict for plaintiff for $7279.73, when defendant took this writ, and alleged that the court erred in rejecting the above testimony; in the answers to the foregoing points, and the portions of the charge above set forth.</p> <p>A factor with unlimited powers to sell and loan accepted pipe-line orders for oil of his principal, for money, in the manner customary in the business, and according to his own judgment, who does sell and loan them in the manner directed, cannot be held to have wrongfully converted the property into money: Cooley on Torts 442, 448, 449, 450; Everett v. Coffin et al., 6 Wendell 604; Sargeant v. Blunt, 16 Johns. 73; Dufresne v. Hutchinson, 3 Taunt. 117; Jenner v. Joliffe, 6 Johns. 9; Lockwood v. Bull, 1 Cowen 322; Etter v. Bailey, 8 Barr 442; Wagenblast v. McKean, 2 Grant 393; Bunting v. Dessau, 9 Phila. R. 31.</p> <p>Whether defendant was a factor or a broker he was clearly entitled to show that the custom of those doing the business he was engaged in, was to deposit the money received for their principals, and buy and sell without disclosing the names of said principals.</p> <p>The Bankrupt Act expressly provides for a discharge from a debt or obligation growing out of the taking and converting of goods by the debtor. It makes no difference, therefore, that the plaintiff below brought an action of trover. The form of action determines nothing, and we must look only at the character of the debt. We contend there was no evidence of actual fraud, and nothing from which an inference of fraud could lawfully be drawn: Chapman v. Forsythe, 2 Howard 202; Grover & Baker v. Clinton, 8 Nat. Bank Reg. 312; Cronan v. Cotting, 104 Mass. 245; Neal v. Clark, 5 Otto 704; Hennequin v. Clews, 19 Albany Law Jour. 477.</p> <p>It is true the certificates were properly in the possession of Shattuck, and that he was authorized to loan them for Haworth, but when he disposed of them for his own benefit, or deposited them as collateral for his own debt, he made a wrongful and Unauthorized conversion of them. Trover will lie for certificates: Neiler et al. v. Kelley, 19 P. F. Smith 403; Norlin v. Kidder, 54 Me. 187; Graves v. Smith, 14 Wis. 5; Coffin v. Anderson, 4 Black. 395; Hart v. Skinner, 16 Vt. 138; Tallman v. Turck, 26 Barb. 167.</p> <p>Clearly Shattuck’s discharge in bankruptcy did not release him from liability on this claim. Bankruptcy is no bar to an action of trover: Hughes v. Oliver, 8 Barr 426. “No debt created by fraud or embezzlement of the bankrupt, or while acting in any fiduciary character, shall be discharged,” is the plain language of the act.</p>

<p>1. A person riding on the train of a railroad company in violation of the regulations of the company, with or without the knowledge of the company’s employees, cannot recover damages for injuries received while so riding.</p> <p>2. A boy was permitted by a conductor to ride on the train of a railroad company, to sell newspapers, in violation of the regulations of the company, and was killed by an accident. Held, that the boy was a mere trespasser, and the company was not liable.</p>

<p>1. A sheriff sold the land of a debtor to a judgment-creditor, who after-wards conveyed the land to the wife of the debtor. Another creditor whose judgment wan prior to that on which the land was sold, subsequently sold and purchasec. the land on his own judgment, and brought ejectment against the wife t'heiefor. Held, that the second sheriff’s sale vested no title. Held, further, that the title of the defendant was vested in the vendee at the first sheriff’s sale, and the sheriff’s deed to him not having been contested on the ground of fraud, he had a perfect right to convey to the wife of the debtor, and ci editors of the husband could not attack her title.</p> <p>2: The decl nations of a vendor after he has parted with the land cannot be received in evidence to impeach the title of the vendee.</p>

<p>Error to the Court of Common Pleas of Armstrong county: Of October and November Term 1879, No. 121.</p> <p>Assumpsit by William Hartley against James P. Parker and others, doing business as the Parker Savings Bank, to recover a balance of $6250 on plaintiff’s bank account.</p> <p>On the 16th of October 1876, R. B. Allen entered into a contract, in writing, with James S. Lowe, for the sale of 5000 barrels of oil at $3.53§, deliverable some days thereafter.</p> <p>By the practice and custom of oil dealers in that locality, upon entering into such contracts, the seller deposited in bank his counterpart of contract with money, called margins, sufficient to secure its performance. The buyer also deposited his counterpart in bank, with money sufficient to secure its performance, with the understanding that the counterpart and money deposited by either party should only be released by the consent of both, until the contract was fulfilled. In the present instance, Lowe, the purchaser, deposited his counterpart, with his margin of $1250, in the Exchange Bank. Allen deposited his counterpart, with margin, in the Parker Savings Bank.</p> <p>Allen had not of himself enough money for his margin required by his contract. He informed Hartley of the contract and of his need of margins, and requested him to furnish the money required. Hartley agreed to do so, upon condition that he should bear, or receive, the one-half of the losses or profits that should accrue on the contract. He accordingly drew his check in the following form:—</p> <p>“No. - Parker’s Landing, Pa.,</p> <p>October 16th 1876.</p> <p>Parker Savings Bank pay to order of P. McGough, cashier, twelve hundred and fifty dollars, margin on contract for 5000 barrels oil, sold S. King, per contract, in hands of said McGough.</p> <p>$1250. William Hartley.”</p> <p>This cheek Allen deposited with his counterpart of the contract of that date in the Parker Savings Bank. This counterpart had on it the following endorsements:—</p> <p>“Parker City, Pa., October 16th 1876.</p> <p>I have placed in the hands of P. McGough, cashier, twelve hundred and fifty dollars, as part guarantee for the fulfilment of the within contract; and I hereby agree to place further margin in cash, or oil, if such is required, in difference, on demand being made by buyer, within twenty-four hours after such demand is made, in writing, to R. B. Allen. If said demand is not complied with within the time, I agree to forfeit margin already up, and that this contract may be sold, without further notice, at public sale.</p> <p>“And I hereby authorize and empower the said P. McGough, cashier, to deliver the same at once and without delay to James S. Lowe, at the maturity of the contract, if I fail to fully comply with its terms and conditions. R. B. Allen.”</p> <p>“Parker City, Pa., October 16th 1876.</p> <p>I hereby acknowledge the receipt of twelve hundred and fifty dollars, on the conditions and for the purposes above set forth.</p> <p>P. McGough, Cashier,</p> <p>per Sam.”</p> <p>Some days afterwards, during the lifetime of the contract, the same was settled and adjusted between the parties thereto, Allen and Lowe. Notice of the settlement and consequent release of the margins wás given to the banks in which they had been deposited. The plaintiff in error thereupon paid to Allen, or his order, the amount of his margin.</p> <p>On the 21st day of October 1876, a like contract was entered into by Allen for the sale to one A. Frazer of 10,000 barrels of oil, at $3.07^ per barrel-, deliverable some days thereafter. Allen, in this case also, had not the money required for margin, and again applied to Hartley, who gave to him a check in form following:—</p> <p>“No. Parker’s Landing, Pa.,</p> <p>October 23d 1876.</p> <p>Parker Savings Bank pay to the order of P. McGough, cashier, five thousand dollars-margin (or collateral guarantee) on Frazer and Allen contract of 10,000 barrels of oil at $3.07J.</p> <p>$5000. William Hartley.” •</p> <p>This check Allen deposited, with the contract, in the bank of the defendant. Allen received from the teller a receipt for the amount of the same.</p> <p>This Frazer contract, during its lifetime, wap settled and adjusted between the parties thereto. To effect this settlement, a considerable part of this margin was required to be used by Allen, and the residue thereof was paid by the bank to him or his order. Some time after the completion of these transactions, Allen became insolvent.</p> <p>Hartley demanded from the bank the amount of his checks, and upon refusal, brought this suit.</p> <p>At the trial, before Taylor, P. J., the defendants offered to prove “ that by the custom of the bank and the custom of the oil trade, upon contracts of the nature of those of the 16th of October 1876, the parties to the contract left the money deposited as security for the performance of the contracts, and when said contracts were settled or paid, either before or at their maturity, the bank would recognise no person in the contract except the parties named as sellers and purchasers, or their agents, and that this custom of the bank or trade was known to the plaintiff on the 16th and 23d of October 1876, at the time he drew the check.”</p> <p>Objected to by the plaintiff, first, as incompetent and irrelevant ; that the- contract of the depositing checks was expressed on the face of the checks of the 16th and 23d of October 1876; that there was neither fraud or ambiguity alleged, and the custom of the bank could not affect or change the contract; second, because if Mr. Hartley knew the custom of the bank, the face of the checks shows that he drew them to exclude the custom and to create a specific contract unaffected by any custom of the bank or the trade; third, that the custom of one bank is not such a- custom as is recognised by law.</p> <p>The court sustained the objections.</p> <p>The following points were submitted by plaintiff, to which are appended the answers of the court:—</p> <p>1. That the check of 16th October 1876, expressing, as it does, upon its face, a contingent liability of the drawer, the bank was bound to take notice of the contingency thus expressed, and became a trustee for the drawer to hold the check until the contingency upon which its payment arose, and the contract of 16th October 1876 having been fully paid and satisfied before maturity, the defendant had no right to pay the money upon the check to R. B. Allen, or any other person, except William Hartley, the drawer of the check.</p> <p>Ans. “Affirmed, as qualified by the charge. We submit to the jury the question of the right to pay to Allen.”</p> <p>2. That the check of 28d October, 1876, expressing, as it does upon its face, a contingent and collateral liability of the drawer, the bank was bound to take notice of the contingency and collateral character thus expressed, and became a trustee for the drawer to hold the check until the contingency, upon which its payment arose, and that the contract of the 21st October 1876, having been fully paid and satisfied, on the day of or before its maturity, the defendant had no right to pay the money upon that check to R. B. Allen or any other person, except William Hartley, the drawer of the check.</p> <p>Ans. “Affirmed, as qualified by the charge.”</p> <p>3. That a deposit of check or checks as collateral security is to be governed by the law relating to sureties, and where the principal debtor pays the debt before or at its maturity, there is no responsibility upon the surety or his deposit, and the creditor or person in possession of the checks or evidences of suretyship, are bound to surrender them to the surety, and have no right to dispose of them in any other way.</p> <p>Ans. “ Affirmed, if there be no evidence of authority to pay to another, outside of the paper itself. This point as made, answered in the negative.”</p> <p>5. That the plaintiff is entitled to recover at least the difference between the amount of the check of 23d of October 1876, viz.: $5000, and the amount required of that check to make up the margin on the contract of 21st of October, 1876, viz.: $687.50, with interest from the day of demand.</p> <p>Ans. “Affirmed, as qualified by the charge.”</p> <p>In the general charge, the court, inter alia, said:—</p> <p>“ You will take our construction of these papers, and apply the evidence to our construction of it. And we instruct you that by the terms on the face of the checks, there was a specific appropriation of the funds of Hartley in the bank to the extent of the amount named in the checks, and for the purpose named in its terms. By its terms the defendant was authorized to set apart so much of the drawer’s funds as was covered by the checks to be held as security for any loss that might be sustained by reason of Allen’s, entering into the contract with Frazer or Lowe, or for the faithful performance of the same by Mr. Allen. This limitation, upon the face of the checks, the defendants were bound to take notice of. They might have refused to have receivéd the checks, had they seen fit, and not had anything to do with the transaction. But, having done so, they are bound to the faithful performance of the trust.”</p> <p>Verdict for plaintiff for $5959.83, and after judgment, defendants took this writ and alleged, inter alia, that the court erred in excluding the above-mentioned testimony, in the answer to the points and the foregoing portion of the charge.</p> <p>Dealers living at different localities, when they met at Parker and made contracts, desired some place to deposit them and the accompanying securities. The bank there occurred to them as a convenient place for this purpose, and the bank officers, as an accommodation, permitted them to leave there their papers and securities. With the increasing number of these occasions, the bank was (to prevent inconvenience), forced to adopt certain rules in relation to such transactions, and did adopt them. These rules, or this practice, well known to all the parties, were acted on by. them and by all other dealers in that locality.</p> <p>It was under and subject to these rules, custom or practice, that the contracts and securities were deposited by Hartley, and the other parties and were received by the bank. Manifestly, therefore, they became part of the contracts between the bank and Hartley, Lowe, Allen and Frazer, the same as if they had been then and there distinctly enumerated, as the condition upon which the bank would receive the custody of the papers and securities: McMasters v. Pennsylvania Railroad Company, 19 P. F. Smith 374; McCarty v. N. Y. & Erie Railroad Company, 6 Casey 247; Carter v. Philadelphia Coal Company, 27 P. F. Smith 286; Whitesell v. Crane, 8 W. & S. 369.</p> <p>Although there is nothing of a fiduciary character in the ordinary relations between banker and customer, who are in those circumstances simply debtor and creditor; the latter having a right to call for his money or any part of it, immediately, yet if the dealings between them go beyond this point, in any tvay, and the banker is employed by the customer to make investments for him or otherwise to manage his monetary transactions, then the banker is, in that respect, the agent of the customer and is hound to observe complete good faith in the performance of the customer’s orders: Grant on the Law of Banking, p. 115. The bank knew Allen was not to have the margin, from the fact that Hartley drew on his own funds, and the contracts and the checks, which accompanied them, pinned together and thus passed into the bank, expressly stated the purposes and the contingencies for which the money had been checked from Hartley’s account to the “ margin ” account, and which would revert to Hartley’s account whenever the contracts were duly satisfied. Nor was this a mere gratuitous undertaking, for the fact is that the bank was remunerated by these very transactions, through the benefits and advantages which usually accrue to banks through the general deposits of their customers ; and these transactions were the inducements to oil dealers to deposit with banks which would undertake to act as stakeholders or holders of securities.</p>

<p>1. A judgment note was filed of record, and a confession of judgment entered thereon. Subsequently the parties to the note, in the presence of the prothonotary, changed the terms thereof on the record. Held, that although this was an improper and unqualifiable tampering with the record, it would not, in the absence of actual fraud, postpone the judgment to the liens of subsequent creditors.</p> <p>2. The note was merged in the judgment, and was a paper which was functus officio.</p>

<p>1. The authority given to a married woman by the Act of April 15th 1851 to loan money of her separate estate, through the intervention of a trustee, implies the power to arrange the terms of the loan and provide when and how it shall be repaid, and whether with or without interest.</p> <p>2. When the power thus conferred is freely and voluntarily exercised, the transaction necessarily assumes the form of a contract, binding equally on both parties.</p> <p>3. Per Sterrett, J. If it should appear that the loan was not voluntarily made on the part of the wife; that it was effected by the fraud or coercion of the husband, the law would doubtless interpose for her protection and compel immediate payment of the money thus unlawfully obtained.</p>

<p>S. conveyed a property to T., about three o’clock in the afternoon, taking at the same time a judgment-note for the unpaid purchase-money. She returned to her home at once, but owing to the lateness of the hour and the condition of the weather and the roads could not that night go to Somerset, which was the county seat, eight miles distant. She started early the next morning, and reached the prothonotary’s office before it was opened, and entered the judgment within fifteen hours from the delivery of the deed. Held, that the delivery of the deed and the entry of the judgment were a continuous act, so as to give effect to the judgment as a lawful continuation of the lien for purchase-money, and judgments which had been entered against the equitable estate of X. were not entitled to priority.</p>

<p>Under an arrangement between plaintiff and her daughter and son-in-law, the details of which were disputed, the latter moved on a farm owned by plaintiff. In general terms the arrangement was that the daughter and son-in-law were to live on the property and take care of and support plaintiff during her life, and at her death the daughter was to have the land. The plaintiff lived on the farm in pursuance of these terms until some disagreement arose when she moved away and gave her daughter and son-in-law notice to quit. Upon their refusal she brought an action of trespass guare clausum fregit. The evidence was conflicting as to whether by the terms of the contract defendants were to take and hold exclusive possession during the life of plaintiff. Held, that as the defendants had control of the farm and used it as their own, and had such lawful possession as authorized them to put in the crops, their right of possession did not, during the growth thereof, at once cease and determine, so as to make them liable in trespass for continuing there, although they failed to fulfil all the terms of their contract thereafter.</p>

263. Appeal of James E. Brown from the decree of the court sustaining the exceptions to the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of the real estate of Linas Townsend. The real estate of Townsend was sold and the proceeds, $3685, paid into court and distributed by an auditor. All the judgments entered or revived within five years preceding the sale were paid in full, leaving a surplus.

<p>1. A paper was drawn up in lead-pencil, and purported to contain statements made by an insured and taken down by the agent of the insurance company at the office of the company at the time the policy was applied for. The application on its face was not to the insuring company, but was drawn on the blank of another company. The insured signed this paper, and a policy issued to him which referred by number to this paper. The court below instructed the jury that this paper was not to be regarded as a formal application, but simply as a memorandum. Held, that this was error.</p> <p>2. Per Gordon, J. We can see no good reason why an application for insurance may not be drawn in lead-pencil.</p>

<p>Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1878, No. 318.</p> <p>Scire facias sur mortgage by the Union Mutual Insurance Company of Maine against Lorin B. Leasure.</p> <p>The Union' Mutual Life Insurance Company of Maine is a company incorporated under the laws of that state. Included in the charter a power was conferred on the company, amongst other powers, to loan money and secure the payment of it by taking mortgages. Under this power the company loaned to the defendant Leasure $4500, and to secure its payment took from him his mortgage dated 5th October 1875, on the defendant’s land in Westmoreland county, Pa.</p> <p>The mortgage was payable one year from date; the interest payable semi-annually at the rate of six per cent., and it contained the usual scire facias clause in case of default in payment of principal or interest. The defendant pleaded payment and subsequently filed the following special plea:—</p> <p>“ That the plaintiff is a foreign corporation, incorporated, as alleged, by the legislature of the state of Maine. That said corporation has no authority, under any Act of Assembly of the state of Pennsylvania, to loan money within the state of Pennsylvania and take mortgages for the payment of the same on real estate' situate in the state of Pennsylvania. He therefore prays judgment that the said mortgage is void and no,recovery can be had against the defendant in this action.”</p> <p>On the trial the question as to the right of the plaintiff to make the loan and maintain this action was reserved, and the jury instructed to find for plaintiff, and a verdict for $5425.12 was entered accordingly. After argument judgment was entered for the plaintiff on the question reserved.</p> <p>This action was assigned for error by defendant, who took this writ.</p> <p>The company acquired the right to insure property in this state under the Act of April 11th 1868, Pamph. L. 89. Tliat act was designed to establish a complete system, under which alone such a company incorporated in another state could do business in Pennsylvania: Thorne v. Travellers Ins. Co., 30 P. F. Smith 15.</p> <p>To sustain the position of the plaintiff, it must be shown that there is a law of Pennsylvania conferring on the company the right to loan money and take mortgages.</p> <p>The Act of 26th April 1855, expressly forbids corporations other than such as shall have been incorporated under the laws of this state, or any foreign government, potentate or power from acquiring and holding any real estate within this Commonwealth, directly in their corporate name, or by or through any trustee or other device whatsoever, unless specially authorized to hold such property by the laws of this Commonwealth: Purd. Dig. pp. 391-2, pl. 56.</p> <p>The power to grant life insurance policies is one thing, and the right of a foreign corporation to transact business in their corporate name without authority of law, when the companies incorporated under our own laws could not do it, is another. If this power is recognised by this court it will be difficult to tell to what limit it may be carried or for what purposes used. Foreign capital may be withdrawn from the reach of the taxing power of this Commonwealth, and revenues which ought to belong to this state will go to another state.</p> <p>A corporation of one state may sue in the courts of' another. If it may sue, why may it not make a contract ? The right to sue is one of the powers it derives from its charter. If the courts of another country take notice of its existence as a corporation, so far as to allow it to maintain a suit and exercise that power, why should not its existence be recognised for other purposes, and the corporation permitted to exercise another power, which is given to it by the same law and the same sovereignty, when the last-mentioned power does not come in conflict with the interest or policy of the state ?</p> <p>Here the plaintiff had power to lend money and secure it by mortgage. The exercise of this power is not forbidden in Pennsylvania, either by policy or statute, and the right to sue here becomes undoubted by the comity of nations, and especially by the comity of the states of the union. As well might the plaintiff in error contest the right of a citizen of Maine to recover a just debt as to attempt to avoid this mortgage. The morality of the one is as obnoxious as the other. “ One who has enjoyed the fruits of his contract with a corporation cannot set up that it was ultra vires:" Oil Creek & Allegheny Railroad Co. v. Pennsylvania Transportation Co., 2 Norris 160.</p>

<p>Error to the Court of Quarter Sessions, of Armstrong county: Of October and November Term 1879, No. 65.</p> <p>Indictment of George A. Williams, sheriff of Armstrong county, for perjury.</p> <p>Williams was the Republican candidate for sheriff of said county and was elected and duly commissioned. He assumed the duties of his office on January 1st 1877, taking and subscribing to the oath of office. The information charged him with perjury as to the part of the oath as follows: “ I have not paid or contributed, either directly or indirectly, any money or other valuable thing, to procure my election, except for necessary and proper expenses expressly authorized by law. I have not knowingly violated any election law of this Commonwealth or procured it to be done by others in my behalf.”</p> <p>On the 15th of August 1878, the same day the information was made, Williams appeared before a justice and gave bail for his appearance at the next term of the Quarter Sessions in September 1878. At the September sessions of said court, the grand jury found a bill of indictment against him, which recited the portion of the oath above set forth, except that the words “nomination or” were inserted between the words “my” and “election.” The indictment had three counts, the first and second in the words of the oath; the third “ that he, the said George A. Williams did, before and previous to taking the oath- aforesaid, and signing the same, and previous to his said election, pay and contribute and promise to pay and contribute, money and other valuable things to procure his nomination for the office of sheriff.”</p> <p>On the 11th December 1878, when the cause was called for trial, and before plea pleaded or jury sworn, the defendant’s counsel moved the court to quash said indictment, because :—</p> <p>1. The grand jury, by whom the same was found, was not properly constituted, and the Commonwealth was permitted to exclude therefrom two members, viz.: Benjamin Oswald and John Orim, who were duly served and in attendance at said sessions as grand jurors, and the Commonwealth was allowed to interrogate, and did interrogate, the members of the grand jury upon their voir dire as to their opinion relative to said prosecution, except Frank Mateer, who was known (not to the court) to have expressed opinions strong and decided against the defendant, and who was permitted by the Commonwealth to be sworn, and served upon the grand jury in said cause, without being interrogated or sworn upon his voir dire.</p> <p>2. The said indictment does not specify or name the person or persons to whom the alleged promises, contributions or payments Were made, or the circumstances, nature or amount of such promises, contributions or payments, or the times and places thereof, or in what respect or how, and by what manner or means the. defendant violated or caused to be violated the election laws of this Common wealth.</p> <p>The court, Boggs, P. J., overruled the motion, but said it would be heard and considered on motion for a new trial, or in arrest of judgment. Exception by defendant’s counsel and bill sealed.</p> <p>And thereupon the defendant pleaded not guilty. Immediately thereafter the counsel of the Commonwealth challenged the' array of traverse jurors for the reason that they had been summoned by the defendant as sheriff, which challenge the court sustained- and ordered a venire for twenty-four persons for jurors, and the coroner being sick and not able to summon the jurors, appointed Joseph Clark and C. C. Jessup elisors to summon twenty-four persons as traverse jurors from the bystanders or from the body of the county at large. The elisors named proceeded to a neighboring hotel and selected and summoned twenty-four persons as said jurors. They made return as follows:—</p> <p>“ List of the names of to persons summoned to serve as traverse jurors in the Court of Common Pleas, to be holden at Kittanning, in and for the county of Armstrong, commencing on the 11th day of December A. D. 1878, -JRo'clock, p. m.” (Here followed a list of the names simpl$¿ wi^Bp any residence or occupation.)</p> <p>“We do hereby^naHjBThat the foregoing is an accurate list of the names of persone jBmoned by us for jurors, to meet the 11th day of December, ¿ co^B78, from the body of the county of Armstrong, according W tW writ hereto annexed, dated 11th day of December A. D. 187#¿ff</p> <p>Witness our hanttrBt Kittanning, this 11th day of December A. d. 1878.</p> <p>Joseph Clark,</p> <p>C. C. Jessup,</p> <p>Elisors.”</p> <p>The jurors were then called, when defendant challenged C. N. Henry, for cause, in that the said Henry was the competitor of said defendant for the office of sheriff of Armstrong county, at the general election in said county, in November 1876, at which the breaches of the election laws are alleged to have been committed by defendant.</p> <p>To this challenge, the Commonwealth demurred, and the court sustained the demurrer, and allowed the juror to sit and try the cause.</p> <p>The Commonwealth called a number of witnesses, who testified relative to promises, payments, &c., alleged to have been made by defendant to .secure his nomination. In the general charge, the. court withdrew this point, but by some inadvertence the defendant’s first point, requesting the withdrawal of this evidence, was refused.</p> <p>The defendant submitted the following points, to which are appended the answers of the court:</p> <p>1. The court is respectfully requested to withdraw from the jury all evidence relative to any of the alleged payments, contributions or promises made .by defendant to procure his nomination as sheriff, and to instruct the jury to wholly disregard the same, and that their verdict must be not guilty upon the last count of the indictment.</p> <p>Ans. “Refused.”</p> <p>2. That in this case the Commonwealth is required to prove by the oaths of two witnesses, or by the oath of one witness and corroborative facts equal to the oath of another witness, each specific, corrupt promise, payment or contribution which they charge the defendant with having made or paid, and that it is not sufficient to prove one corrupt act by one witness, and another corrupt act by another witness.</p> <p>Ans. “Affirmed as explained in general charge.”</p> <p>In the general charge, the court, niter alia, said:</p> <p>“ The case you were sworn to try i®he prosecution by the Commonwealth v. George A. Williams, aBM-ging him with corruptly violating the organic law of this Con^Mtowealth. * * * The allegations on the part of the CommonweaMLpn the one hand, and on the part of the defendant on the othe^Rnd, form the issue you were sworn to try and determine from t’iHievidence in the cause, and the law as laid- down to you by theHurt for your guidance. ***** Now, you will determine ho^Kie issue in this case, is from the evidence in the cause, hav® regard to the law given by the court. * * * The learned co®sel for the defendant contends that this organic law was not inteBded to apply to individuals, but only to combinations of parties^ud owners of- manufacturing establishments; but I am constrained to say such is not the true meaning of the law. I instruct you that this organic law is intended to apply not only, as is contended by the learned counsel, to combinations of persons and owners of manufacturing establishments, but also to individuals.</p> <p>“ * * * Here I remark that some of the witnesses, perhaps one or more, spoke of having to go to electioneer; some called it to work for the defendant, but Webster thus defines the word, ‘Electioneer,’ to make interest for a candidate at an election; to use arts for securing the election of a candidate. Here I remark, if you find from the evidence in the cause, that the defendant did pay or contribute, or promise to pay or contribute, either directly or indirectly, any money or valuable thing to procure his election, except for necessary and proper expenses expressly authorized by law, if you so find, then the law presumes it was done knowingly and wilfully. So you observe, if you find from the evidence in the cause that the defendant did as charged in the bill of indictment, pay or contribute, or promise to pay or contribute, either directly or indirectly, any money or other valuable thing to any elector who was called and testified in this case for his vote, or for the purpose that such elector should make interest for the defendant when he was a candidate before his election, arid before he took his oath of office; or in other words, if he did pay or contribute, or promise to pay, such elector, either directly or indirectly, any money or other valuable thing for his vote, or for the purpose that the elector should use arts for securing the election of the defendant as a candidate for sheriff of this county, if you find this to he true from the evidence in.the cause, then your verdict should be that of guilty, in manner and form as he stands indicted, in the first and second counts of the indictment. •</p> <p>“ Here I instruct you, that it is a general rule that the testimony of a single witness is insufficient to convict on a charge of perjury, and there must be such other circumstantial evidence of facts as is equal to another witness. Such corroborative facts, proved by other witnesses as is equal to a second witness. If other material facts and circumstances be pro^^by other witnesses in confirmation of the witness who gives the^Hfct testimony of perjury, it is sufficient ; some other indeperifiSHmdence, equal to another witness, should be produced. > ^</p> <p>“ I am asked by the learned counsel for the defendant to instruct you that such rule must? be observed,-respecting each specific corrupt promise, payment /or contribution charged, and that it is not sufficient to prove one corrupt act by one witness, and another corrupt act by another witness. This request, as I understand it, I cannot sustain. /</p> <p>“You will consider well and carefully all the evidence in the case, and ferret out the plain, naked truth ; and, as you find the truth, one way or the other, so. should be your verdict. You are to follow in the light of the evidence, and determine from the evidence, and from it alone, the issue in the cause.”</p> <p>Verdict, “guilty in manner and form as he stands indicted.” The court afterwards overruled a motion in arrest of judgment, and sentenced the defendant to pay a fine of $100 to the Commonwealth, the costs of prosecution, and to undergo an imprisonment in the Western Penitentiary for two years and one month.</p> <p>The defendant took this writ, and, inter alia, made the following assignments of error: 7. The order sustaining the challenge to the array; ordering a venire and appointing the elisors. 8. The precept to the elisors. 12. The refusal of defendant’s first point. 18. The answer to his second point. 14. The portion of the charge set forth above. 15. The overruling of the motion in arrest of judgment, and 16. The sentence.</p> <p>The Commonwealth cannot challenge a grand juror in any other manner than a private person, and the defendant cannot examine grand jurors on their voir dire as to the alleged cause of challenge. The jurors should have been taken from the jury-wheel and not selected by the elisors. The evil of such a course is manifest in this case, where the elisors went to a hotel, which was the Democratic headquarters, and from the registry of the hotel and those standing around selected the panel.</p> <p>The defendant, Williams, could get from the indictment not a scintilla of information as to what act or words, done or uttered (during the campaign two years previously), the Commonwealth complained of. No person’s name, save that of himself and of the recorder before whom he was sworn, is mentioned in the indictment from its caption to the signature of the district attorney. It nowhere states what he paid or gave, promised to pay or give, whether money, chattels, lands or appointments, or how the election laws or the constitution was violated.</p> <p>In the construction given to art:- 7 of the constitution and to the Act of 18th April 3874, which was passed to enforce it, it did not fully state the construction contetó^j| for by the defendant’s counsel, which was and is, that said ;||^He and act were intended to prevent a candidate from purchaswWvi''1h money, promises or contribution, either the votes of electo» from the electors themselves; as, for instance, going to one and offering .or paying him so much money to vote for the candidate, or the control of votes; that is influence; as for instance, the candidate going to the officers of a political club and paying to them money' in consideration of the club and its members voting for him, or going to the officers of a railroad company or other corporation, and in consideration of their compelling their employees, by threats of discharge or otherwise, to vote for him, paying money to said officers, or promising to procure benefits (e. g. beneficial legislation) for the corporation; or going to a manufacturer and paying him money to induce him to use his power, as master over his employees, to induce or compel them to vote for him (the candidate). And that neither the article nor the act was intended to prevent a candidate, say for governor, residing in Philadelphia, and perhaps not personally known in the oil country, who learns that damaging and slanderous reports are being circulated about him in the oil district, which will defeat him unless refuted, and which he can only refute by sending his friend, in whom the oil people have confidence, to personally refute and contradict the stories, from sending such friend, and if necessary, paying him for the time lost, and expenses incurred in going, delaying and returning.</p> <p>. A suitor in a court of justice is allowed to pay an advocate to electioneer for him (e. g. use arts, for Gorgias demonstrates that rhetoric is an art) with a jury sworn in the cause. The words for dissemination of information to the public, not dissemination of public information used in the Act of 18th April 1874, wqre doubtless intended to have some meaning.</p> <p>Where there are several assignments of perjury in addition to the testimony of a single witness there must be corroborative proof with respect to each: Greenleaf on Evidence, sect. 257.</p> <p>This is the first indictment under the constitution of 1874, in reference to elections, and demands the most serious attention of the court.</p>

<p>Error to the Court of Common Pleas of Westmoreland county: Of October and November Term 1879, No. 187.</p> <p>Trespass quare clausum fregerunt by Adam D. Bowman against. John Kuhns, Sr., and his sons.</p> <p>The material facts will be found in the opinion of this court.</p> <p>The court below charged the jury as follows :—</p> <p>“ Although the fact has not been adverted to during the progress of the trial, yet it is not to be overlooked by the jury that you are sworn in two separate actions, which invites separate verdicts at your hands. The one is an action of ejectment brought to recover the premises described in the writ, and the other an action of trespass brought to recover damages for alleged entries upon the premises by the defendants. In the first action, Adam D. Bowman is plaintiff and John Kuhns is defendant, and in the last action there is the same plaintiff and John Kuhns, Sr., John Kuhns, Jr., - Henry Kuhns and Joseph Kuhns are defendants. [It may be said in general, that in the event of your finding a verdict in favor of the plaintiff in the first action, then under the same evidence, and if you credit the additional testimony of one witness as to cutting timber on the disputed tract, you will also find a verdict for merely nominal damages in favor of the plaintiff in the second action. In other words both actions stand or fall together, as far as any contested question in the causes you are sworn to try is concerned.”]</p> <p>Verdict for plaintiff, when defendants took this writ, and alleged that the court erred in the portion of the above charge included in brackets.</p> <p>The recovery by John Kuhns in the action of ejectment to May Term 1869, which was pending until the 20th of January 1877, when judgment was entered on the verdict rendered on November 29th 1876, was conclusive that he could commit no trespass in 1876 on this land, for which damages could be recovered in an action of trespass quare clausum fr eg erunt, brought on October 14th 1876. The judgment was- conclusive of Kuhns’s right to possession and to mesne profits: Drexel v. Man, 2 Barr 271; Barnes v. Dean, 5 Watts 543; Shoenberger v. Barker, 10 Harris 404; Lane v. Harrold, 22 P. F. Smith 267.</p> <p>Kuhns, although he had an action of ejectment pending at the time the trespass was committed, had no right to enter upon the possession of Bowman and commit a trespass. He had a right after his recovery in the ejectment to issue a habere facias possessionem, and until that was done he had no right to enter on the land and commit a trespass against Bowman’s actual possession.</p>

<p>Appeal from the Orphans’ Court of Indiana county: Of October and November Term 1879, No. 353.</p> <p>Appeal by the Boards of Home and Foreign Missions of the United Presbyterian Church of North America from the decree of the court in the matter of the distribution of the fund in the hands of Robert Pattison, executor of Archibald Stewart, deceased.</p> <p>Archibald Stewart died on the 5th of April 1877, unmarried, aged about ninety years, and leaving a will dated September 24th 1857, with two codicils, dated respectively December 7th 1861 and August 26th 1864. The testator bequeathed a number of specific legacies, among which were the following: To his brothers, John and William Stewart, fifty shares each of the stock of the Bank of Pittsburgh; to his niece, Floranna Thompson, twenty shares of said stock, and to another niece, Eliza McQuilken, ten shares. Referring to these and other specific legacies the testator directed that “my said executors are hereby authorized to transfer my stock in the Bank of Pittsburgh, above specifically bequeathed, to the persons to whom the same is bequeathed “and none others.” The will further provided :—</p> <p>“ The rest and residue of my property, real, personal and mixed, I do direct my executors to sell and dispose of, and execute and deliver good and sufficient deeds of conveyance therefor, for such as may be real estate, and the proceeds of such sales I do hereby devise and bequeath to the Home and Foreign Missionary Board of the Associate Reformed Church in the United States of America, by whatsoever name or style the same may be known or incorporated by“”</p> <p>The codicil of December 7th 1861 contained this provision:—</p> <p>“ Whereas since the making of my said foregoing last will and testament, a union has been made between the Associate Reformed Church and the Associate Church in the United States, forming by such union a church under the name and style of the United Presbyterian Church, now I do by this codicil declare and direct that the bequest in my said will given to the Home and Foreign Missionary Board of the Associate Reformed Church" in the United States of America, shall 'be transferred, and I do hereby bequeath and transfer the said bequest and the money thereby bequeathed, to the Home and Foreign Missionary Board of the United Presbyterian Church aforesaid, by whatsoever name or style the said board may be known or incorporated. In witness whereof I have hereto set my hand and seal the day and year last above written. And I do hereby republish my said last will and testament, and do declare and direct that any real estate I may have purchased or become seised of since the making of said will, shall pass under the same as though I had been seised thereof at the making of said will.”</p> <p>And by the codicil of August 26th 1864 the testator declared, “ I do hereby ratify and republish the foregoing last will and testament and codicil thereto, made December 7th 1861.”</p> <p>The will was probated in April 1877, and letters testamentary granted to Robert Pattison, the surviving executor, who, on November 1st 1877, filed an account showing a balance in his hands of $119,563.21, which, deducting expenses, left $114,908.05 for distribution. The auditor awarded to the legatees above mentioned the shares of stock bequeathed to them with the accrued dividends, and to the Boards of Home and Foreign Missions of the United Presbyterian Church of North America, the remaining shares of stock in the several banks mentioned in said will, and embraced in executor’s account, with the accrued dividends since the death of the said testator; the accrued dividends on the stock in the First National Bank of Indiana; the lapsed legacy of Archibald W. Stewart ; the appraised value of the household goods, and the unlifted dividends in the said banks and the balance on general account with the Bank of Pittsburgh at death of testator, after debts, expenses of settling estate, and expenses of audit, amounting to $33,928.94.</p> <p>The auditor’s report having been presented to the court, exceptions were filed on behalf of certain of the heirs-at-law, to the allowance by the auditor of the sum of $34,457.72 to the Boards</p> <p>Home and Foreign Missions of the United Presbyterian Church of North America, and the legacy to Archibald W. Stewart as lapsed, &c.</p> <p>In ruling upon these exceptions, the court, Blair, P. J., inter alia, said:—</p> <p>“It is clear that the Home and Foreign Missions are entitled under the residuary clause of this will, to the money arising from the sale of the stocks in the three national banks, and from the sale of the remaining 270 shares of the stock of the Bank of Pittsburgh. It is not denied that they will be entitled also to the dividends declared on these stocks respectively since the testator’s death. They will also be entitled to the proceeds of any other property, peal or personal, he may have had at the time of his death, which is ordinarily the subject of sale. But we discover no words in it, taken by themselves, or in connection with the whole will, that would warrant us in giving them that description of property which consists of money. Had testator devised and bequeathed to them all the rest and residue of his property, real, personal and mixed, or had he simply given them all the residue of his property, this would have included his money, especially when taken in connection with the introductory words of the will evincive of an intent to dispose of his whole estate. It was quite competent and easy for him to do this, if he so intended. Instead, however, of bestowing the residue of his entire estate, he limits his bounty to a p'art of it, by directing his executors first to sell the rest and residue, and then bequeathing to the Home and Foreign Missions the proceeds of such sales. To exchange or sell money, or what is regarded and treated as such, would but bring money in return, and we cannot suppose the testator to have directed a proceeding so irrational and useless. The residue he described was not general.</p> <p>“ It does not purport to dispose of everything he might have when he died, undisposed of by previous provisions'of the will. It disposes only of a particular residue. The direction to sell is not confined to the real estate. It applies as clearly to the personal as to the real, and it is greatly to the interest of the boards of missions that it does, because, while he may have owned other real estate in addition to what is specifically devised to William Stewart and Mary Pattison, the testimony, now before us, does not disclose the fact. Then, while he distinguishes between the real and personal property, by authorizing his executors to make deeds for such as may be real estate, he immediately returned to the direction to sell both real and personal and devises and bequeaths the proceeds of such sales. This language seems guarded and is free from ambiguity. If we dare suppose, in the face of plain language to the contrary, that he meant to give the residue of his personal property of every description, but that his meaning with respect to that kind of property was obscured by accidentally incorporating in the same sentence an authority to his executors to sell his real estate, and execute conveyances for the same, we might expect to find some correction of this important clause of the will, when he came to make the first codicil. But the codicil does not enlarge the residue. It rather re-afiSrms the limited character stamped upon it previously. He therein transfers the bequest given in the will, and ■ — not money generally — but the money thereby bequeathed. To say that the legatee shall have money, not within the obvious meaning of the terms used, would be to make a will for the testator, rather than to carry out the one he has made for himself. We must be careful to avoid this.</p> <p>“ That part of the report of the auditor awarding the sum of $33,928.94, being money or cash owned by testator at his death, to the Boards of Home and Foreign Missions of the United Presbyterian Church, is set aside, and the same is directed to be distributed among the next of kin of the testator, according to law.”</p> <p>From this decree the Boards of Missions took this appeal.</p> <p>We contend that Mr. Stewart did not die intestate as to any part of his estate, but that the residuary clause in his will is sufficiently broad and comprehensive to cover the entire residue of his estate, including the money in bank on deposit and the unlifted dividends on his bank stock at the time of his death.</p> <p>If a testator directs all the rest of his property, real, personal and mixed, to be sold and applied as he directs, and a part of that property happens to be money, or credit on the books of a bank, is this alleged inconsistency with the custom of the country to override all the other provisions in his will, the evident general intent and surrounding circumstances, and is intestacy to be declared when the testator himself never contemplated it? No doubt he considered money the most suitable and desirable bequest he could make to the Boards of Missions, and hence directed the rest and residue of his property, without intending any restriction or reservation, to be converted into money and go to the said Boards of Missions.</p> <p>The courts incline against any construction of a will which would result in intestacy, unless it is absolutely forced upon them : Redf. on Wills, 2d ed., vol. 2, p. 116; Thornton v. Burch, 20 Ga. 791; Hearne v. Wigginton, 6 Madd. Ch. 120, Am. ed., p. 82; Woolmer’s Estate, 3 Whart. 480; Nyce’s Estate, 5 W. & S. 260; Massey’s Appeal, 7 Norris 470.</p> <p>We insist, upon the part of the heirs-atdaw, that this clause is not broad enough to carry the $34,457.72, which is the amount of his moneys on deposit and his unlifted dividends at the time of his death, after deducting debts, expenses, &c. It will be observed that testator names his residue as “ propertyhe does not provide as to the rest and residue of his “estate,” or of his “effects,” but of his property. A word which was not likely tó be used to designate money, or deposits or ehoses in action. Then he directs that this property shall be “sold and disposed of.” If the property referred to was money on deposit or dividends unlifted, these would certainly not be the subject of sale. Further, to show that the sales referred to were to be of the personal property, and had special reference to real estate, he directs his executors to make deeds-“for such” of the property sold as may be real estate, which implies of course the sales were to be of personal and real estate both, and his bequest to the Home and Foreign Missions is not of the property, but of the “proceeds of such sales.”</p> <p>We maintain, therefore, that the residue which he describes in the clause in question, was not a general but a particular residue. And as confirming this view of the case we refer to Hunter’s Estate, 6 Barr 97; Brendlinger’s Appeal, 2 Grant 461; McGlaughlin’s Executors v. McGlaughlin’s Administrator, 12 Harris 22; German v. German, 3 Casey 116; Ann Myers’s Appeal, 12 Wright 26; Fraser v. Alexander, 2 Dev. Eq. 348; Bradley v. Jones, 2 Ired. Eq. 245; Alexander v. Alexander, 6 Id. 229; Archer v. Duncale, 1 Peters 589; Strong v. White et al., 19 Conn. 238; Goulder County v. Littlejohn, 30 Wis. 344.</p> <p>When a residue is given it is true that every presumption is to be made that the testator did not intend to die intestate; but if he fails to make a disposition of any part of his estate it is an intestacy as to that part. The question is not whether he intended to dispose of the whole residue of his estate; it is, has he done so, and if he has, to whom has. he given it: Duffield v. Morris, 8 W. & S. 348.</p> <p>The use of general words like these, though always to be carried down to the devising clause, in order to illustrate the testamentary intention, do not of themselves create a fee, and will not carry an estate that is clearly emitted: Rupp v. Eberley, 29 P. F. Smith 141.</p> <p>This cause was argued in the court below prior- to the ruling of the Supreme Court in Massey’s Appeal, 7 Norris 470, and, therefore, upon the authority of the cases Patterson v. Swallow, 8 Wright 490, Neff’s Appeal, 2 P. F. Smith 327, and Yard v. Murray, 5 Norris 113, we argued that the legacy of Archibald W. Stewart, deceased, which lapsed by reason of his death, sank not into the residuary estate, but went to the heirs-at-law as in case of a devise. Under the ruling of Massey’s Appeal, however, this legacy sinks into the particular residue bequeathed to the appellants.</p>

<p>Appeal from the Court of Common Pleas of Indiana county: Of October and November Term 1879, No. 375.</p> <p>Appeal of William Maher from the decree of the court dismissing the exceptions to, and confirming the report of the auditor appointed to distribute the proceeds of the sheriff’s sale of the real estate of Luther Martin.</p> <p>In ruling upon the exceptions, the court, in an opinion, said:</p> <p>“ We think the deduction of the excess of interest paid on the notes prior to the entry of the judgment was a mistake. The judgment described and specified the notes it was designed to secure, and thereby fixed the real .amount of the debt. Martin would not be allowed to say that he owed less than the judgment called for, or to deduct payments alleged to have been made before the judgment was obtained. Nor will his creditors be allowed to say so, in the absence of fraud! But all excess of interest paid on the notes after the entry of judgment is a payment on the principal, and must be deducted therefrom, as each payment-was made, after allowing the plaintiff interest at the rate of six per cent. The revival by scire facias was not conclusive on Martin, because no judgment had been obtained on the notes. The record of the judgment shows that it was merely a security for the debt represented by the notes. Maher so treated it, for when he revived it, judgment was taken for the $5000, as in the original, although a large sum had then been paid on the debt. It is urged that the two notes must be treated as separate and distinct, and that one of them having been paid and surrendered more than six months before the sale, it is too late to recall the excess of interest paid on that note. But it is only by virtue of the lien of the judgment that the plaintiff has any claim on the fund. This judgment was for one entire debt, and it makes no difference that the debt was evidenced by two securities. The excessive interest received after the entry of the judgment must go in liquidation of the whole debt thereby secured. See Price’s Appeal, 3 Norris 141. The reoort is referred back to the auditor with instructions to make a calculation accordingly, and report distribution.”</p> <p>The other material facts will be found in the opinion of this court.</p> <p>If Martin or his creditors have the right to deduct or retain the interest paid in excess of the legal rate prior to the revival of the judgment, upon what rule of the law shall he be allowed to deduct from the amount yet remaining unpaid on the $2500 note, the excess of interest paid on both notes ? We have already seen, and it cannot be denied, that the notes were founded in entirely different and distinct transactions, and had no relation to or connection with each other.</p> <p>If, therefore, the judgment had never been taken, certainly it would not be pretended that Martin upon payment of either one of the notes would have the right — after the expiration of six months — to deduct or retain the interest paid upon it in excess of the lawful rate, out of the remaining note. Each note represented an entire transaction, evidenced an independent debt, and the Act of the 28th of May 1858, only provided tfyat the borrower or debtor may retain and deduct such excess from the amount of such debt— not from any debt — but from the same debt. Or if the whole debt has been voluntarily paid then he may within six months recover back the excess interest paid on that debt — such excess may also be recovered by way of set-off to any other independent claim within six months.</p> <p>This judgment was for one entire debt, and it makes no difference that the debt was evidenced by two securities. The excessive interest received after the entry of the judgment must go in liquidation of the whole debt thereby secured: See Price’s Appeal, 8 Norris 141. The question is not one of indebtedness only, but is also one of lien. The right of the appellee to a share of this fund rests on the lien only. It therefore can extend to the payment of no claim not sustained by the lien. The validity of the lien is to be decided by the record. There is no judicial liquidation of the amount actually due. To ascertain the amount due from Martin to Maher resort must be had to other testimony than the record. No contract other than that shown by the record can be set up to establish the amount secured by the lien: Price’s Appeal, 1 Norris 141.</p>

<p>1. The issuing of a policy of insurance when a portion of the questions in the appplication remain unanswered, is a waiver of the answers to .such questions.</p> <p>2. In an application'for a policy of insurance the eleventh interrogatory was: “What is the distance, occupation and materials of all buildings within one hundred and fifty feet.” It was contended that the ¿mission to make any answer to the interrogatory avoided the policy. Held, that it was within the power of the company to decline the risk or seek further information, and having issued the policy they must be presumed to have been satisfied with the risk.</p>